Income Tax Appellate Tribunal - Mumbai
Bain Capital Advisors (I) P.Ltd , vs Assessee
आयकर अपील य अ धकरण "के" यायपीठ मुंबई म।
IN THE INCOME TAX APPELLATE TRIBUNAL "K" BENCH, MUMBAI ी संजय अरोड़ा, लेखा सद य एवं ी वजय पाल राव, या यक सद य के सम । BEFORE SHRI SANJAY ARORA, AM AND SHRI VIJAY PAL RAO, JM रोक आवेदन सं./SA No. 158/Mum/2014 (Arising out of ITA No. 1360/Mum/2014) ( नधारण वष / Assessment Year: 2009-10) Bain Capital Advisors (India) Private Dy. Commissioner of Income Tax, Limited Circle - 3(1), बनाम/ 2nd Floor, Free Press House, Mumbai Nariman Point, Mumbai-400 021 Vs. थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. AADCB 4464 B (Applicant) : (Respondent) Applicant by : Shri Arvind Sonde Respondent by : Shri Maurya Pratap सनु वाई क तार ख / : 30.05.2014 Date of Hearing घोषणा क तार ख / : 30.05.2014 Date of Pronouncement आदे श / O R D E R Per Sanjay Arora, A. M.:
This is a Stay Application ('SA' for short) by the Assessee qua its appeal preferred before the tribunal on 27.02.2014 in respect of its assessment under the Income Tax Act, 1961 ('the Act' hereinafter) for the assessment year (A.Y.) 2009-10.
2.1 Opening the arguments for and on behalf of the assessee, it was submitted by the ld. Authorized Representative (AR), the assessee's counsel, that the principal issue arising in the instant case is by way of a transfer pricing adjustment made in assessment 2 SA No. 158/Mum/2014 (A.Y. 2009-10) Bain Capital Advisors (India) Private Limited vs. Dy. CIT by making a comparison with one, M/s. Motilal Oswal Investment Advisors Private Limited ('Motilal Oswal' for short), by not accepting the assessee's contention that the said company, a merchant banker, is not comparable in-as-much as the assessee is engaged only in investment advisory services, and toward which he would take us to page 6 of the Directions dated 31.10.2013 issued u/s.144C(5) of the Act by the Dispute Resolution Panel-1, Mumbai (DRP). The tribunal had an occasion to decide a similar matter in the case of Carlyle India Advisors Private Limited vs. Dy. CIT (in ITA No. 7367/Mum/2012 dated 07.02.2014), again an investment advisory firm, as the assessee, wherein similarly, comparison was made with Motilal Oswal. The same was found not comparable with the appellant-company in-as-much as the former was a merchant banker with diversifeed activities, viz. takeover, acquisitions, disinvestment, etc. On being queried that this was also for the reason that no segmental reporting in respect of the said firm, also carrying on the activities being carried on the appellant, stood brought to the notice of the tribunal, he would submit that the same obtains for the instant case as well in-as-much as only the consolidated accounts of Motilal Oswal were available, and the comparison has been made with reference thereto. Further, the assessee has in fact already paid a substantial portion of its total demand arising in assessment. The entire outstanding demand of Rs.80.73 lacs, including interest at Rs.13.35 lacs, be therefore stayed for recovery. The assessee's appeal is fixed for hearing on 01.07.2014 before 'K' Bench, while the Departments' appeal is fixed before the same Bench on 25.06.2014, so that the same is likely to run in near future.
2.2 The ld. Departmental Representative (DR), on the other hand, would submit that the orders by the authorities below are well considered, after having taken all the aspects of the matter into account.
3. We have heard the parties, and perused the material on record. Our purview in the present proceedings is only qua a balance of convenience, and toward which the assessee has before us pleaded of having a prima facie case in-as-much as the comparable relied 3 SA No. 158/Mum/2014 (A.Y. 2009-10) Bain Capital Advisors (India) Private Limited vs. Dy. CIT upon by the Revenue has been held to be a merchant banker. Even as our order shall have no bearing whatsoever on the merits of the case of the parties in appeal, we consider it a fit case for grant of stay, which we hereby do by granting stay for a period of six months or the disposal of its appeal by the tribunal, whichever is earlier. Needless to add, the assessee shall not seek adjournment without justifiable reason, and which shall, where so, operate to vacate the stay. We decide accordingly.
4. In the result, the stay application is allowed.
Order pronounced in the open court on May 30, 2014 Sd/- Sd/-
(Vijay Pal Rao) (Sanjay Arora)
या यक सद य / Judicial Member लेखा सद य / Accountant Member
मंब
ु ई Mumbai; दनांक Dated : 30.05.2014
व. न.स./Roshani, Sr. PS
आदे श क त ल प अ े षत/Copy of the Order forwarded to :
1. अपीलाथ / The Applicant
2. यथ / The Respondent
3. आयकर आयु त(अपील) / The CIT(A)
4. आयकर आयु त / CIT - concerned
5. वभागीय त न ध, आयकर अपील य अ धकरण, मुंबई / DR, ITAT, Mumbai
6. गाड फाईल / Guard File आदे शानस ु ार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई / ITAT, Mumbai