Income Tax Appellate Tribunal - Mumbai
Diageo India P.Ltd, vs Dcit 7(3), on 29 March, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL "K" BENCH, MUMBAI
BEFORE SHRI C.N.PRASAD, JUDICIAL MEMBER AND
SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER
S.A. No. 167/M/2017
(Arising out of ITA No981/Mum/17
Assessment Years: 2007-08
Diageo India Private Limited. Dy. CIT,Range-(73), Aayakar
Bhavan, M.K. Rooad.
4th Floor, Peninsula Corporate
Vs.
Park, Mumbai-400020.
PANNo-AAACI3378L
(Applicant) (Respondent)
Appellant by : Mr. M.P. Lohia
Respondentby : Mrs. Malathi Sridharan (CIT-DR)
Date of Hearing : 24/03/2017
Date of Order : 29/03/2017
ORDER
PER ASHWANI TANEJA:
By way of this stay petition, the assessee is seeking stay ofdemand of Rs.5,79,30,316/- arising as a result of Transfer Pricing adjustments made by the Transfer Pricing Officer in AY 2007-08. This petition came up for hearing earlier also on 17.3.2017. On the said date of hearing, Ld. Counsel of the assessee had submitted that issue involved in the impugned year is covered by the order of the Tribunal in the assessee's own case for AYs 2008-09 & 2009-10 vide order 2Diageo India Pvt.
dated 27.4.2016 in ITA No.7545/M/2012. Under these circumstances balance of convenience lies in favour of the assessee, therefore, stay should be granted for the entire amount.
2. Per contra,thethen DR appearing on behalf of the Revenue did not make any distinction between facts and issues involved inAYs 2007-08, 2008-09 and 2009-10. Therefore, both the parties agreed that main appeal can be taken up for hearing on urgent basis so that entire litigation could come to an end, one way or the other. Under these circumstances we fixed the next date of hearing of stay application as well as mainappeal for23rdMarch 2017.
3. The main appeal was also kept for hearing for the reason that the issue wascovered and thusmain appeal wouldalso be disposed of.In this backdrop, the appeal was fixed for hearing on 23.3.2017 and the following order-sheet was noted on 17.3.2017:-
"It was submitted by the counsel that the total demand is Rs.5.82 crores. Entire demand is on account of the issues which are covered by the decision of Tribunal in assesses own case of the subsequent years. No distinction was made by Ld. DR. After hearing the parties, stay as well as main appeal are fixed for hearing on 23.3.2017. In the meanwhile no coercive measures shall be taken by the department. Both parties informed. In case assessee seeks adjournment then this appeal shall come up for hearing in regular course and our stay order stand vacated. The assessee is directed to file paper-book to DR latest by Tuesday i.e. 21.3.2017."
4. However, on the date of hearing of appeal i.e.on 23.3.2017, the DR has again requested for adjournment. Weinformed the Ld DR that the entire issue was claimed to be covered by the assessee, therefore, under these circumstances and with this understanding only today's date was kept for hearing. But Ld. DR still persisted for adjournment for no sufficient reason. We 3Diageo India Pvt.
find that the approach followed by Revenue is not fair and it could have been avoided.
5. Anyways, as far as assessee'srequest for stay of demand is concerned, it is noted that Ld. Counsel of the assessee has placed before us copy of the judgment of the Tribunal for AYs 2008-08 & 2009-10 passedin assessee's own case, wherein identical issue is involved. The same has not been distinguished before us by the DR. Thus, taking into account totality of the facts and circumstances and especially keeping in view the disregardful and negligent approach followed by Revenue by not arguing the appeal despite our clear instructions, we find that this case deserves for granting stay of demand.
6. We are pained to mention that it has been our observation thatit has become a routine practice nowadays that in many cases adjournmentare sought on behalf of the Revenue even in the stay granted matters and on expiry of stay period when assessee seeks extension of the stay, the request of the assesseeis vehemently objected to by the concerned DR appearing on behalf of the Revenue and that too without giving any sufficient reasons and even if this factis brought to the knowledge of the DR that on the most of the dates adjournments were taken by the Revenue, therefore stay period expired, but still request for extension of stay is still strongly objected. In our view such kind of approach is highly deplorable and we deprecate the same.
7. However, we hope that this matter would be taken up by the concerned higher authorities of the Income Tax department in right direction and spirit and suitablemechanism and arrangements would be made in this regardto ensure thatunnecessary adjournments are not takenin stay granted matters. In case adjournments have been taken by the Revenue, then revenue officers have no moral or legal right to oppose petition for stayfiled by the assessee.We leave it at this stage for the concerned higher authorities to look into the matter.
4Diageo India Pvt.
8. Coming back to the facts of the case, wegrant stay on the recovery of total outstanding demand of Rs. 5,79,30,316/-. The AO shall not take any coercive measures for recovery of said demand. Our stay order shall be operative for 180 days from the date of this order or till the disposal ofmain appeal, whichever is earlier. The main appeal is directed to be fixed for hearing on 22nd June, 2017. In case assessee seeks adjournment without any sufficient reasons, then our stay order shall stand automatically vacated and AO shall be free to recover the pending demand. In case adjournment is sought onbehalf of the Revenue withoutsufficient reasons, the same would be granted only subject to the payment of the cost of the amount as may be considered appropriate by the Bench to be deposited into Prime Minister Relief Fund.
9. It is also clarified that our stay order has no bearing on the merits of this case. The stay petition is allowed subject to the aforesaid directions.
Order was pronounced in the open court at the conclusion of hearing.
Sd/- Sd/-
(C.N. Prasad) (Ashwani Taneja) Judicial
Member Accountant Member
मुंबईMumbai; िदनां क Dated : 29.03.2017
V. Pal Singh
5Diageo India Pvt.
आदे श की ितिलिप अ े िषत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. थ / The Respondent
3. आयकर आयु"(अपील) / The CIT(A)
4. आयकर आयु" / CIT- concerned
5. िवभागीय ितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai
6. गाड* फाईल / Guard File आदे शानुसार/BY ORDER, उप/सहायक पं जीकार(Dy./Asstt.Registrar) आयकर अपीलीय अिधकरण, मुंबई / ITAT, Mumbai