9911796707
TMI Blog2022 (7) TMI 1160X X X X Extracts X X X X X X X X Extracts X X X X ..... the plea of hardship, it is noted from the petitioner s standalone statement of profit loss that its earnings before interest, tax, depreciation and amortisation for the year ended 31st March, 2021 is Rs. 330.76 crores. It is further noted that the revenue from operations of the petitioner for the same year stand at Rs. 1604.66 crores. So also the current assets of the petitioner are reported as Rs. 4,930.34 crores. With respect to the contention of the petitioner as regards brought forward losses of Rs. 9,671.83 crores as reported in its ITR for AY 2021-22, it is noted that out of the same, Rs. 7167 crores have been set off in the AY 2021-22. The petitioner has not suffered any operational losses in the relevant financial year. In these circumstances, the plea of hardship as raised by the petitioner is not made out. Accordingly, the impugned order dated 2nd June, 2022 does not call for any interference. We, however, direct the Commissioner (Appeals) to dispose of the appeal within a period of 12 weeks from today. - W.P.(C) 10731/2022 & CM APPL. 31141/2022 - - - Dated:- 18-7-2022 - HON'BLE MR. JUSTICE MANMOHAN AND HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of China. He states that the aforesaid shareholding/ownership is duly disclosed in the Annual Report of the CDB for the year 2016, which has been placed on record before the respondents. 4. Learned counsel for the petitioner states that the amended Protocol of India-China DTAA which was entered into on 5th June, 2019 and made applicable from 1st April, 2021 makes it further clear that CDB was and remains a 100% Government owned entity. He further submits that the ownership of CDB before and after the amendment of the Protocol has not changed and the CDB is therefore, eligible to get exemption under the India-China DTAA. He has also drawn our attention to the Annual Report of the CDB for the year 2020 in support of his contention that the shareholding of the CDB remains unchanged and stands as it did in assessment year 2016-17. 5. Learned counsel for the petitioner states as is evident from the record its application seeking stay of the demand was summarily rejected by the assessing officer on the ground that as per the CBDT OM No. F. No. 404/72/93/-ITCC dated 29th February, 2016, AO cannot grant a stay until 20% of the disputed payment is paid. He submits that against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven if the case of the petitioner did not satisfy the said conditions. 8. The respondent appeared on advance service and accepted notice. At the outset, the learned counsel for the respondent submitted that he has no objection if the petitioner s prayers seeking direction to CIT (A) to dispose of the petitioner s appeal in a time bound manner is allowed. He, however, submitted that the petitioner in this writ petition is seeking an order from this Hon ble Court on the prima facie merits of the case as regards the ownership of CDB, which is impermissible since this issue has to be determined in the pending appeal. He stated that the contention raised by the petitioner as regards the ownership of the China Development Bank is an issue of fact which should be determined in the appeal by the Appellate Authority after appreciation of evidence on record. He submitted that this Court must not make any prima facie observations as regards the said issue of ownership as it would prejudice the parties herein. He submitted that there is no error committed by the CIT in the impugned order as admittedly the two conditions of the CBDT OM No. F. No. 404/72/93/-ITCC dated 29 th February, 2016 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. The counsels were heard on 23rd September, 2020, 9 th October, 2020 and 4th December, 2020, when orders were reserved. The contentions of the counsels are on two aspects. Firstly, on the timing of the order under Section 241A of the Act and secondly qua the reasons stated in the order under Section 241A aforesaid, with: ... E. the senior counsel for the petitioner in sur-sur-rejoinder contending that the counsel for the respondents has not furnished any explanation whatsoever for the delay in refund and in issuing notice under Section 241A of the Act. 13. We have considered the rival contentions and are of the view: ... VIII. The AO and the Principal Commissioner, in exercise of powers under Section 241A, are required to take a prima facie view of the outcome of the assessment pursuant to notice under Section 143(2). They are also the authorities vested with the power of assessment. The authority vested with the power of final determination is the best authority to take a prima facie view. Moreover, the statute provides statutory remedies in the form of appeals, against the final determination by such authority. In such statutory scheme, under Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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