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TMI Blog2015 (10) TMI 1708X X X X Extracts X X X X X X X X Extracts X X X X ..... demand. In the case of Shri Dinesh Kumar Singhi, the total demand includes levy of interest u/s 234D amounting to ₹ 26.44 crores for the assessment years 2005-06 and 2006-07 and the assessment for those assessment years were already completed prior to the date of search u/s 132, therefore, assessment u/s 153A for these two assessment years would be re-assessment and not a regular assessment. Thus, the assessee has also made out a prima facie case on the point of levy of interest u/s 234D. Accordingly, having considered the totality of the facts of the case, we are of the considered opinion that the assessees before us have made out a good arguable case on merits as well as for grant of stay of the balance outstanding demand when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the regular assessment for the assessment year 2005-06 and 2006-07 allowed the claim of the assessee-Shri Dinesh Kumar Singh, u/s 10B. However, while completing the assessment u/s 153A, the said claim of the assessee was withdrawn by the AO and consequently there is a demand in question. He has further submitted that the total demand for the seven years comes to ₹ 253,88,64,501/- out of which the assessee has already paid a sum of ₹ 164,45,31,814/-. Thus, the assessee has already paid more than 65% of the total demand which includes interest u/s 234A to 234C. The learned AR of the assessee has pointed out that the total demand in the case of the assessee includes interest levied u/s 234D for the assessment year 2005-06 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... house in the year 2006 and therefore, when the request of the assessee for private bonded warehouse was pending for consideration, assessee did not set up the EOU. The learned AR of the assessee has further pointed out that the assessee has claimed its own manufacturing facility as bonded warehouse and merely because the request of the assessee was pending cannot lead to the conclusion that the assessee did not set up the EOU. He further submitted that for the assessment year 2003-04, the claim of the assessee u/s 10B was allowed by the AO while passing the assessment order u/s 143(3) and the said assessment has already attained finality. Thus, the denial of deduction u/s 10B is based on change of opinion without any material found or seize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee has made out a prima facie case for stay of the outstanding balance demand till the disposal of the appeal. 4. On the other hand, learned Departmental Representative has submitted that during the search and seizure operation, it was detected that the request for private bonded warehouse was pending with the authorities and till the assessment year under consideration, the said approval was not granted by the concerned Ministry therefore, the AO has given the finding that the assessee did not establish the 100% EOU during the years under consideration and the claim of deduction u/s 10B was not eligible for all the years. Thus, learned Departmental Representative has submitted that though the assessee has already paid part of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the end of the previous years relevant to these assessment years. Since this is a complexed issue of examination of the fact as well as lawwhether the assessee has established its 100% EOU despite the fact that the request of the assessee for private bonded warehouse was pending with the authorities. Therefore, in the facts and circumstances of the case, when the claim was earlier allowed for the assessment year 2004-05 which has not been disturbed by the AO till date and further the assessees before us have already paid about 65% and 56%respectively of the total outstanding demand which includes the levy of interest u/s 234A to 234D then the assessees have made out a prima facie good case for grant of stay against the balance outstanding d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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