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TMI Blog2024 (6) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... tions as noted by us above, however, considering the orders passed on the subsequent assessment years (A.Ys. 2010-11, 2011-12, 2012-13), we are of the opinion that it would not be correct for the petitioner to raise a contention that the recovery as sought to be made for assessment year 2014-15 would be in the nature of a protective recovery. If such argument is accepted, orders that have been accepted by the petitioner in depositing the demands for the assessment years 2011-12 and 2012-13, (which is Rs. 50 crores and Rs. 100 crores respectively) could not have been passed. Moreover, such orders are accepted by the petitioner. Petitioner s contention that the assessment for the year in question, being a high-pitched assessment, such a demand would warrant a blanket stay - In the facts of the case, we are not inclined to accept such contention considering as to what has transpired for the previous years, i.e., A.Ys. 2008-09, 2010-11, 2011-12 and 2012-13. In such context, the petitioner s reliance on the decision of Valvoline Cummins Ltd. [ 2008 (5) TMI 20 - HIGH COURT OF DELHI] would also not assist the petitioner, as the facts are completely distinct from the facts in hand. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eem it fit and proper to grant a stay on collection of the impugned tax and interest demands on the condition that (i) the assessee will pay Rs. 230 crores, which works out to approximately 20% of the disputed tax demand, within 30 days from today; (ii) the assessee will furnish a corporate guarantee from an associate company, which has unencumbered assets in India in excess of the balance disputed demands, i.e., Rs. 900 crores; and (iii) the assessee will fully cooperate in expeditious disposal of the appeal in question, as also other appeals which are tagged and clubbed with this appeal, and in case of any lapses on the part of the assessee in this regard, this stay shall stand vacated forthwith. This order shall remain in force for six months from today or till further orders whichever is earlier. The assessee and the income tax department are also directed to furnish the details of all the related appeals, which may have any bearing with the issues in this appeal, so that the matter is placed before the bench, at the earliest possible, for tagging and clubbing, with a view to ensure that all the related matters are taken up for hearing together in a holistic manner, if necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision dated 8 October, 2015 of Division Bench of this Court (Vodafone India Services P. Ltd. vs. Commissioner of Income-tax and Anr.,) (2016) 385 ITR 169 Bom. It is contended that such decision of this Court was assailed by the Revenue before the Supreme Court in a Special Leave Petition, on which the Supreme Court has granted leave by an order dated 13 May, 2016 and the proceedings are sub-judice. Be that as it may, Ms. Sethna would not dispute that insofar as such proceedings for A.Y. 2008-09 were concerned in pursuance of the interim order passed by the Tribunal, the petitioner was directed to deposit an amount of Rs. 200 crores, which was deposited by the petitioner and for the balance demand, it had submitted a corporate guarantee of Rs. 3538.49 crores from the petitioner s ultimate parent company, i.e., Vodafone International Holdings BV, Netherlands. According to her, the Tribunal ought to have appreciated that there was sufficient security available with the department so as not to insist on a further deposit in relation to the impugned assessment order, which is for the assessment year 2014-15. Such argument of Ms. Sethna is also premised on the fact that what stands cov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed from the prior assessment years not only by the Tribunal but also accepted by this Court and Gujarat High Court as seen from the chart. 6. Mr. Suresh Kumar, learned counsel for the revenue in opposing the petition has drawn our attention to the impugned order passed by the Tribunal to submit that in paragraph 5 of the impugned order, detailed observations are made to pass the order in question. It is submitted that considering the facts of the case and by applying the settled principles of law the Tribunal has exercised jurisdiction in passing the impugned interim order. He submits that in the absence of any perversity or any gross illegality, the observations as made in the impugned order would not call for interference, as the view taken by the Tribunal in the facts of the case directing legitimate deposit of the amount as per the provisions of Section 254 (2A) of the Act is an appropriate exercise of the discretion. It is submitted that the impugned order apart from being a plausible order, is a discretionary order and accordingly it ought not to be interfered with. 7. Ms. Sethna would submit that the contentions of Mr. Suresh Kumar ought not to be accepted more particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to 6.01% of the holding in respect of call and put options being actually exercised. Hence, such observations of the Tribunal cannot be regarded to be in any manner warranting interference with the impugned order. In any event, the Tribunal has clearly observed that what was relevant for the impugned order to be passed, is the events of taxation for the subsequent years are different from what was the position in the year 2008-09. This is clear from the following observations: . In any event, the triggers for taxation in the subsequent years are different. The impugned ALP adjustment, therefore, cannot be treated as merely on the protective basis, and, for this reason, the collection of disputed demands cannot be deferred till the Hon ble Supreme Court decides the matter for the assessment year 2008-09. All these factors taken together, in our considered view, this is a case deserving a blanket stay by the Tribunal . 10. We are thus not persuaded to accept the petitioner s contention that in the facts of the case, the recovery being in the nature of a protective recovery, it was not permissible for the Tribunal to pass the impugned order considering the decisions of the orders pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from an associate company which has unencumbered assets in India in excess of the balance disputed demands, i.e., Rs. 900 crores. In this context, we are of the opinion that such condition ought not to have been directed by the Tribunal in the facts and circumstances of the case and more particularly considering the interim orders passed for the prior years based on the same triggers of exercise of options. Such condition, therefore, is hereby substituted by directing the petitioner to furnish a corporate guarantee of its ultimate parent, namely, Vodafone International Holdings BV, Netherlands as accepted by the revenue in the assessment year 2008-09. 14. Before parting, we may observe that although there are some more decisions which are cited on behalf of the petitioner on the aforesaid issues, however to avoid prolix, we have not discussed these decisions. The position of law laid down in these decisions is well-settled, however, considering the facts of this case, such decisions are not applicable. 15. In the light of the above discussion, except what has been modified by us in relation to condition no. (ii) as imposed by the impugned order, we are not inclined to interfere in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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