Income Tax Appellate Tribunal - Delhi
Genpact India Pvt Ltd , Gurugram vs Acit, Tp 2(1) , New Delhi on 23 December, 2022
Author: G.S.Pannu
Bench: G.S.Pannu
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI "I-FRIDAY" BENCH: NEW DELHI
BEFORE SHRI G.S.PANNU, PRESIDENT &
SHRI KUL BHARAT, JUDICIAL MEMBER
S.A.Nos.346 & 347/Del/2022
[In ITA Nos.2442 & 2443/Del/2022]
[Assessment Years : 2017-18 & 2018-19]
GENPACT India Pvt.Ltd., vs ACIT,
DLF City, Phase V, Sector-53, OSD
Gold Course Road, Gurgaon, Delhi.
Haryana-122002.
PAN-AABCE4461B
APPELLANT RESPONDENT
Appellant by Shri Sachit Jolly, Adv.,
Shri, Soham Dua, Adv. &
Ms. Soumya Singh, Adv.
Respondent by Shri Sanjay Kumar, Sr. DR
Date of Hearing 23.12.2022
Date of Pronouncement 23.12.2022
ORDER
PER KUL BHARAT, JM :
Both the stay applications filed by the assessee seeking extension of stay of disputed demand of Rs.3,97,08,19,100/- and Rs.2,14,88,12,356/- for the Assessment Years 2017-18 & 2018-19 respectively are taken up together and are being disposed off by way of this consolidated order.
S.A.No.346/Del/2022[In ITA Nos.2442/Del/2022]
2. First, we take up assessee's appeal in S.A.No.346/Del/2022 for the Assessment Year 2017-18.
3. Ld. Counsel for the assessee reiterated the submissions as made in the written chart. For the sake of clarity, the relevant contents of the written chart are reproduced as under:-
S.No. Issues Facts of the case/Assessing Submissions of the Appellant-
Officer's (A.O.) case Assessee
1. Disallowance of During Financial Years (F.Y.) This issue is COVERED in
Amortization of 2014-15 and 2015-16, the favour of the Appellant in view
Goodwill amounting Appellant acquired seven of the following submissions: i.
to Rs. 9,15,60,00,0 Indian entities which was AO has no jurisdiction to
00/- approved by the Hon'ble High make adjustments to the book
Court of Delhi and Hon'ble profit, other than those which
High Court of judicature at are specified under
Hyderabad vide orders dated Explanation 1 to Section
April 8, 2016 and August 17, 115JB(2) of the Act and
2015, therefore, the said
respectively, with effect from disallowance is without
appointed date 01.04.2015. As jurisdiction and liable to be
per Clause 6.1 of the said deleted. Reliance in this regard
amalgamation scheme, all the is placed on:
assets, liabilities, debts and Apollo Tyres Ltd. v. CIT,
reserves of the amalgamating /2002] 255ITR 273 (SC)
entities that transferred and CIT v. HCL Comnet Systems
vested in the Company, have and Services Ltd., [2008] 305
been recorded by the ITR 409 (SC)
Company at their respective Malayala Manorama Co. Ltd.
book values. And as per v. CIT, [2008] 300 ITR 251
Clause 6.4 of the said (SC)
amalgamation scheme, the Without prejudice, it is
differences in the values of net submitted that entire
assets of the amalgamating accounting exercise of
entities vested in the recording of goodwill and
Company as per Clause 6.1, capital reserve has been as per
after adjustments as per the scheme of amalgamation
Clause 6.2 to 6.3, have been being approved by the Courts.
recorded as goodwill/capital Hence, the goodwill created by
reserve. Accordingly, the the assessee in its books of
Appellant recorded goodwill account is genuine and not an
amounting to Rs. 91.561 artificially created goodwill.
million and capital reserve Once a scheme of arrangement
amounting to Rs. 78 million. (including for amalgamations),
During the year under which allows a particular
consideration, the Appellant manner of accounting is
claimed amortisation at of approved by a Hon'ble High
10%, which has been Court, such treatment cannot
disallowed by the AO. be brushed aside by Income
AO relying upon the Tax Authorities. Reliance is
assessment order passed by placed on the decision of
his predecessor in the year Bombay High Court in the
A.Y. 2016-17, made an case of Sadanand S. Varde
addition towards goodwill and Others vs. State of
amortization amounting to Maharashtra and Others (247
Rs.915.60,00,000, to the book ITR 609) wherein it was held
profit, for the purposes of that a Scheme of
computation of tax liability Amalgamation passed by a
under section 115JB of the High Court has a force of
Act, alleging as under: statute.
The goodwill is not genuine Amount of goodwill generated
and is artificially created. would not make a difference if
The amount of goodwill would the assessee had merged into
be of significantly lesser GI or vice versa.
amount, if the assessee had Appellant has accounted for
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merged into Genpact India goodwill as per scheme
('GI'). approved by Courts, making
The goodwill does not follow due disclosures as required by
the required Accounting AS-14 and amortized it as per
Standard ('AS') 14. AS-26. Hence, there has been The audited financial no deviation in the accounting statements of the assessee are method/ policy followed by the not in accordance with the assessee, in maintaining its provisions of Schedule III to books of account the Companies Act, 2013. As per AS-26, internally [AO's Findings in Draft Order: generated goodwill is not Pages 604 to 644 of Appeal recognized as an asset in the Set] books of account, and DRP Directions: Disallowance accordingly, there is no of amortization of goodwill intangible asset namely under 115JB upheld - Pg. 'goodwill' appearing either in 405, para 3.6.2 the books of the amalgamating Final Order (giving effect to entities or the amalgamated DRP Directions) - Starts at pg. entity. Also, AS-26 provides 238 that any excess amount of consideration over the value of the net assets of the transferor company acquired by the transferee company should be recognised in the transferee company's financial statements as goodwill arising on amalgamation. Accordingly, the assessee has amortized goodwill amounting to Rs.9,156 Crores as per AS-26.
Further, AS-14 recognizes the concept of hybrid merger, under para 23 'Treatment of Reserves Specified in A Scheme of Amalgamation'. As per para 23, where the treatment of reserves is prescribed by scheme of amalgamation sanctioned, under the Companies Act, 1956, the same can be followed provided suitable disclosure are made in the financial statement, which is made in the instant case by the statutory auditors under note 41 of the audited financial statements for the FY 2015-16 wherein an explanation regarding the merger of GI and other amalgamating entities with the assessee is given.
[Objections before the DRP:
Pgs. 493-499]
2. Disallowance of During the year under This issue is COVERED in Interest amounting consideration, the Appellant favour of the Appellant in view Page | 3 to Rs. debited interest expense , of the following submissions: i.
507,38,63,0 amounting to AO has no jurisdiction to 14/-on Rs.506,00,00,000 in its make adjustments to the book Non- audited financial statements profit, other than those which Convertible (amount of Rs. are specified under Debentures 507,38,63,014/- disallowed by Explanation 1 to Section 115 ('NCDs') AO is incorrect). The Appellant JB(2) of the Act and therefore, incurred interest expenditure the said disallowance is on NCDs issued by it in without jurisdiction and liable previous financial year to fund to be deleted. Reliance in this its acquisition of shares in regard is placed on:
Genpact India (GI), which has Apollo Tyres Ltd. v. CIT', inextricable link with the [2002] 255 ITR 273 (SC) business of the Assessee and CIT v. HCL Comnet Systems was undertaken as part of its and Services Ltd., [2008] 305 business. ITR 409 (SC) 507,38,63,014/-on Non- Malayala Manorama Co. Ltd.
Convertible Debentures v. CIT, [2008] 300 ITR 251
('NCDs') (SC)
AO relying upon the Without prejudice, no such
assessment order passed for adjustment was made in
A.Y. 2016-17, made an previous AY 2015-16, which
addition towards interest on was the first year during
NCDs amounting to which NCDs were subscribed
Rs.507,38,63,014, to the book and claim for deduction on
profit under section 115JB of account of interest
the Act, alleging that as expenditure was made.
under: There is no circular trading/
The money borrowed through routing of funds obtained
NCDs is merely an through issuance of NCDs.
arrangement by way of The said funds were borrowed
circular trading amongst from an independent group
companies under the same entity, 'Genpact Luxemburg
group. S.A.R.L.' ('Genpact
Money borrowed through Luxembourg'), to which NCDs
NCDs was utilized to buy have been issued for Rs.4,600
shares of GI, which is not part crores against interest @ 11%
of normal trade borrowings. p.a. The said funds, along with
Similar to goodwill, interest assessee's own funds, have
expense is also required to be been utilized to acquire shares
added to the 'book-profif of GI from its overseas
under section 115JB of the shareholders. Further, on the
Act. said amount of interest
[AO's Findings in Draft Order: payable to Genpact
Pages 644 to 663 of Appeal Luxembourg, requisite taxes
Set] have been withheld, under
DRP Directions: Disallowance section 194LD of the Act. Also,
of amortization of goodwill the assessee would like to
under 115JB upheld - Pg. submit that the said income
405, para 3.6.2 from interest earned by
I Genpact Luxemburg has been
Final Order (giving effect to offered by such company to
DRP Directions) - Starts at pg. tax in India, and it has also
238 been duly assessed to tax in
DRP Directions - Issue starts India.
at Pg. 407 at para 3.8 Money borrowed through
Action of AO in Draft Order NCDs was utilized to buy
confirmed - Pg. 409 at para shares, which is for the
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3.8.2 purpose of business of the
Final Order (giving effect to Company. The acquisition
DRP Directions - Draft Order followed by merger provided
upheld by DRP - Pg. 259, para an opportunity to better
(D) leverage the consolidated
assets and capital base, build
a stronger and sustainable
business and improved the
potential for further growth
and expansion of assessee's
business.
[Objections before the DRP (at
pg. 500-503)]
Additions under Normal Provisions
Corporate Tax Issues
3. Disallowance/Addition under section 40(a)(i): During the previous year relevant to AY 2017-18, the assessee incurred expenses (payable to non-resident vendors) for its business purposes in the nature of telecommunication service expenses (such as communication charges, bandwidth charges and other related expenses), data centre, licensing of software, subscription charges, foreign language translation service, training charges, education fees, examination fees, etc, on which no taxes were deducted at the time of remittance. AO disallowed such expenses, in aggregate amounting to Rs.52,78,91,130, on account of non-withholding of taxes.
Disallowance of Rs. Payments were made towards The assessee was not granted 8,90,27,9 13/-on software expense to the non- with any title or ownership of Software resident third party vendors in patents, trademark, the License/Subscriptio relation to obtaining licenses copyright in the software and/ n Charges of various software products, or the documentation, or any without withholding tax as the other intellectual property said payments were not liable subsumed therein. to tax in India, as per the The assessee was not given provisions of the of the Act the rights to copy, modify, read with relevant provisions create derivative words from of applicable tax treaty. the documentation, rent-out, AO alleged the said payments lend, lease, sub-license or in to be taxable as royalty under any way transfer or assign the the Act and under the DTAAs licensee's rights, or entered into with US, UK disassemble, decompile, Singapore and other reverse engineer or in any countries. Accordingly, manner decode the software. accordingly made Software license and disallowance u/s 40(a)(i) for subscription charges are not non deduction of TDS on in the nature of Royalty. This payments made towards these issue is on merits Covered in software expenses. favour of the appellant by the [Finding in Draft Order - Issue decision of Engineering starts at Pg. 674, para 9.5(c)] Analysis Centre of Excellence DRP has remanded this issue (P.) Ltd. v. CIT, [2021] 432ITR (including all sub-issues) to 417 (SC) AO, which is clearly beyond Objections before DRP - Pgs. the provisions of Section 544-554, paras 95 to 134] 144C(8) of the Act.
DRP Directions - Start at Pg.
413, at para 3.12 Issue remanded - Pg. 422 at para 3.12.2
b) Com munication The assessee has not withheld The telecommunication bandwidth charges taxes while making payments services have been provided by Page | 5 and other like to foreign telecommunication the NR vendors wholly outside charges amounting service providers and India and are only in respect to Rs. 20,71,28,1 remitting data centre charges. of the international leg. 64/-& AO has treated the said The telecommunication Data remittances as royalty, to be services have been provided by Centre taxable in the hands of the NR vendors situated outside Charges recipient. India and resident of countries amounting [Finding in Draft Order - Pg. with which India has entered to Rs. 673 (2nd and 3rd paras)] into a DTAA. 4,47,05,55 DRP has remanded this issue The payments are towards 3/- (including all sub-issues) to provision of standard AO, which is clearly beyond telecommunication services. the provisions of Section The payments are not in the 144C(8) of the Act. nature of a royalty for use or DRP Directions - Start at Pg. right to use equipment and/ 413, at para 3.12 Issue or process, as defined under remanded - Pg. 422 at para the relevant tax treaties.
3.12.2 The beneficial provisions of the
k relevant Tax Treaty continue
Final Assessment Order - to be applicable even after the
Issue starts at pg. 271 insertion of Explanations 5
Common finding for all TDS and 6 in section 9(l)(vi) of the
issues at Pgs. 291-292, at Act. Reliance is placed on the
paras H.4 and H.5 following decisions:
- DIT v. New Skies Satellite B
V, [2016] 382ITR 114 (Dei)
Telstra Singapore Pte. Ltd. v.
DC IT, [2021] 123 taxmann.com
124 (Delhi - Trih.), at paras 19,
23, 26.
Qualcomm India (P.) Ltd. v.
ADIT, [2017J 77 taxmann.com
56 (Hyderabad - Trib.), at para
13
Reliance is also placed on -
MOL Corporation v. DCIT,
[2022] 137 taxmann.com 286
(Delhi - Trib.), at paras 8.1 - 8.5
Rackspace US Inc v. DCIT,
[2020] 113 taxmann.com 382
(Mumbai - Trib.) at paras 5-7.
Without prejudice to above,
the said payments made by
the assessee for
telecommunication, bandwidth
and related business services
have been made for the
purposes of making or earning
income from sources outside
India (as our customers are
based outside India), and
hence, fall under specific
exclusion carved out under
section 9(l)(vi)(b) of the Act.
Without prejudice, in light of
non-discrimination clause
under respective DTAAs,
disallowance of expenditure
Page | 6
under section 40(a)(i) of the
Act to be restricted to 30%
with respect to payments
made to non- residents
without deduction of TDS
c) Foreign Language During the financial year This issue is on merits
Translatio n 2016-17, the assessee made Covered in favour of the
Services amounting remittance towards foreign appellant by the decision of
to Rs. 18,70,29,5 language translation services COVERED by Cosmic Global
00/- to vendors based out of China Ltd. vs ACIT [2014] 48
and USA without withholding taxmann.com 365 (Chennai), at
taxes while making payments paras 7-9
to the respective language Payment for Language
translation service providers, Translation services and
as the payments are general training charges to non-
and not technical in nature, resident service provider does
and hence are not taxable in not constitute technical
India under the provisions of services under section 9(l)(vii)
the Act as of the Act and as per tax treaty
well as tax treaty. For qualifying as FTS under
AO treated the same as FTS the relevant tax treaty, the
and accordingly held that the same can be done only if the
Assessee was required to services rendered by the
withhold TDS on the same. vendors satisfy the "make
Findings in Draft Order - Pgs. available" clause as mandated 174-175 - Paras 13, 13.1 under the applicable DTAA. DRP Directions - Start at Pg. Criteria to determine whether 413, at para 3.12 Issue a service would satisfy the remanded - Pg. 422 at para 'make available' condition to 3.12.2 be classified as FTS under the India-USA tax treaty as laid down by the Hon'ble Mumbai ITAT in the case of Raymond Limited vs. DCIT (86 ITD 791) which upheld the principle that unless technical services are rendered which would enable the recipient to apply the technology, it would not constitute 'Fees for Included Services' under the tax treaty.
Without prejudice, in light of
non-discrimination clause
under respective DTAAs,
disallowance of expenditure
under section 40(a)(i) of the
Act to be restricted to 30%
with respect to payments
made to non- residents
without deduction of TDS
[Objections before DRP - Pgs.
554-573 - Paras 135 to 203]
4. Disallowance u/s Assessee claimed export Export incentives is so
10AA of the Act by incentives earned from sale of inextricably linked to the
the AO of export Services Export from India conduct of the business of the
incentives Scheme ('SEIS') scrips in the assessee that it should be
amounting to profits eligible for deduction treated as derived from the
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Rs.76,87,13,198/- under section 1OAA of the business of the assessee.
Act. Reliance is placed on
The export incentives pertain Camiceria Apparels India (P.)
to the sale of duty credit Ltd. v.v. AC IT [2019] 103
scrips received against export taxmann.com 238 (Madras)
of certain specified services Export incentives are in the
under SEIS notified by the nature of operating revenue:
Government of India under CIT, 2 vs. Welspun Zucchi
the Foreign Trade Policy 2015- Textiles Ltd. [2017] 245
16 which are the incidental Taxman 132 (Bombay)
income that should be
included in the meaning of Objections before DRP - Pgs.
profits while computing 514-515
deduction under
section 10AA of the Act.
Income from sale of SEIS
scrips form part of the profits
of the business of the
undertaking only so as to be
eligible for deduction u/s
10AA.
AO however held that export
incentives are not "derived
from" business undertaking.
Findings in Draft Order - Start
at Pg. 664, at para 7, Pg. 665
(second last para).
DRP Directions - start at Pg.
411, para 3.10 Issue
remanded to consider
submissions of assessee - Pg.
412, para 3.10.2
Final Assessment Order (giving
effect to DRP directions) - issue
starts at Pg. 262, Para F.
Final finding at Pg. 269, Para
F.23
5. Allowance of claim In the return of income filed Clai i. Claim was made by way
of depreciation for the year under of letter filed with the AO,
amounting to Rs. consideration, the assessee which was rejected on the
17,16,76,30 ,961 has missed to claim ground that revised return
on goodwill under depreciation under section 32 was not filed. AO relied on
Normal Provisions of the Act on the goodwill Goetze (India) Limited vs. CIT
recognized in the books of (284 ITR 323). However,
accounts against its profit and following decisions have held
gains from business and that Goetze does not apply to
profession. the ITAT:
AO did not accept the Wipro Finance Ltd. v. CIT,
additional claim of the [2022] 13 7 taxmann.com 230
assessee. Further, the AO also (SC)
relied upon his arguments for CIT v. Jai Parabolic Springs
proposing to disallow claim of Ltd., [2008] 306 ITR 42 (Delhi)
amortization of goodwill for This issue is on merits
the purpose of determining otherwise Covered in favour of
book profit, to reject the claim the appellant by the following
of the assessee. decisions wherein it has been
Finding in Draft Order - Pgs. held that 'Goodwill' is in the
717-718, para 11.13 nature of an "intangible asset"
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Claim rejected as filed by way as defined under Explanation
of letter. 3(b) to section 32(1) of the Act
DRP Directions: Start at Pg. and hence, eligible for
405, Para 3.7 depreciation.
Assessment Order upheld at CIT v. Smifs Securities Limited
Pg. 409 (2012) 348ITR 302 (SC)
Final Order - Pg. 259, Para (C.l) Thyssenkrupp Elevator India (P.) Ltd. v. ACIT, [2014] 50 taxmann.com 279 (Delhi -
Trib.), at para 16 Further, AO is dutybound to allow depreciation, whether or not claimed by the Assessee in view of Explanation 5 to the 6th Proviso to Section 32(1) of the Act.
TP TP ADDITIONS
6. Adjustment TPO applied CUP method amounting to Rs. without providing any The TPO has benchmarked the 79,30,00,00 comparable instances and interest rate of 11 % paid by 0/-on considered SBTs base rate as the Appellant against SBI account of payment the arm's length rate thereby lending rate of 9.275%, which of Interest to AEs making an adjustment of Rs. rate was arrived as the mean on Non- 79.35 crores. of opening and closing rate of Convertible Findings in TP Order - FY 2016-17. Debentures Pgs. 826-828 Firstly, the TPO failed to 1.1. 1. SBI Base Rate taken - provide the benefit of Safe Pg. 827-828 at paras 10.3- 13 Harbour Rules which provides Ob Objections before DRP - that prime lending rate should Pgs. 451-467 be increased atleast by arm's Incorrect application of CUP length margin of 300 basis method - Not even a single points. If that is given, then, comparable given by TPO - Pg. the interest rate of 11% would 458, Paras 28-29 be at ALP.
Not considering margin of 300 Secondly, the TPO failed to basis points over base rate - appreciate that the PLR Pg. 461 at paras 38-42 should be of the year 2014-15, Covered by order for AY 2016- relevant to AY 2015-16. in 17 - Pg. 463 at Paras 48-50 which NCDs were initially DRP Directions - Start at Pg. subscribed. Refer:
390, para 3.2 TP Order upheld CIT v. Cotton Naturals, [2015] at Pg. 392, para 3.2.2 55 taxmann.com 523 (Delhi) at paras 38-40 CIT v. GE India Technology Centre Ltd., [2021] 125 taxmann.com 168 (Karnataka), at paras 9-10 Granite Gate Properties Pvt.
Ltd. v. ACIT, [2019] 101 taxmann.com 38 (Delhi - Trib.) Also refer proviso to Rule 10D(4), as follows:
"Provided that where an international transaction [or a specified domestic transaction] continues to have effect over more than one previous year, fresh documentation need not Page | 9 be maintained separately in respect of each previous year, unless there is any significant change in the nature or terms of the international transaction [or the specified domestic transaction, as the case may be], in the assumptions made, or in any other factor which could influence the transfer price, and in the case of such significant change, fresh documentation as may be necessary under [sub-rules (1), (2) and (2A)] shall be maintained bringing out the impact of the change on the pricing of the international transaction [or the specified domestic transaction]. "
7. Disallowance Findings in TP Order - Pg. 829 DRP has remanded this issue amounting to Rs. - Margin on non- eligible units to TPO, which is clearly 86,00,00,00 0/- taken as reference beyond the provisions of made u/s 10AA of Objections before DRP - Pgs. Section 144C(8) of the Act. the Act 472-479 Allocation of common costs is I not a Specified Domestic Allocation of common Transaction under section expenses not covered u/s 92BA. [Refer: Nahar Spinning 92BA - Pgs. 472-473 at Paras Mills Ltd. vs. JCITflTA 2-6 No.64/Chd/2011] at para 10 Incorrect application of TP Without prejudice, the AO Provisions - comparing wrongly added the adjustment profitability of eligible and made by TPO as 'business non- eligible units - Pg. 474 at income' while computing Paras 13-16 Assessee's assessed approach accepted in previous income instead of considering AY 2016-17 - Pg. 478 at paras the same only for the purposes 34-36 of computation of deduction DRP Directions: Start at under Section 10AA of the Act. Pg.393, para 3.4 Issue remanded to TPO at para 3.4.2 TP Order giving effect to DRP Diections-Pg. 430-432 No investigation by TPO in previsous AY 2016-17, so action of TPO valid in law-Pg.
431, third last para ISSUE OF DIVIDEND DISTRUBUTION TAX:
Apart from the above, there is a demand of Rs. 80,84,63,238 raised by the AO on account of Dividend Distribution Taxes ('DDT'), which has arisen mainly on account of non granting of credit of payment made by the Appellant towards the DDT liability. Pertinently, the Appellant has filed a rectification application before the AO on this, which though pending, but vide letter dated 06.10.2022, the AO has accepted that this DDT liability shall be reduced to NIL post rectification.
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4. Ld. Counsel for the assessee contended that vide letter dated 26.09.2022 the Assessing Officer has intimated the Chief Commissioner of Income tax, New Delhi for AY 2017-18, demand raised u/s 115 O of the Income Tax Act, 1961 ("the Act") would be reduced to NIL and the tax demand raised u/s 143(3) of the Act would reduce the tax demand to Rs.306 crores.
He submitted that the Assessing Authority vide letter dated 25.11.2022 determined the refund related to Ay 2003-04 amounting to Rs.2,71,43,780/-.
It is stated that this amount is also to be adjusted against the tax demand for Assessment Year 2017-18. Ld. Counsel for the assessee submitted the issues are largely covered in favour of the assessee. He further contended that the disputed demand may be stayed and the appeal may be fixed for hearing out of turn basis as the issues are largely covered in favour of the assessee. He further contended that the assessee is ready to furnish the bank guarantee of the differential amount after adjustment of refund due to the extent of 20% of the disputed tax demand.
5. Ld. Sr. DR opposed these submissions and submitted that the assessee may be directed to deposit atleast 20% of the outstanding tax demand as the assessee does not have any financial constraints..
6. We have heard the Ld. Authorized representatives of the parties and perused the material available on record. We find that the assessee has a prima facie good case in its favour and there is likelihood of success, we therefore, stay the disputed tax demand of Rs.3,16,23,55,864/- for AY 2017- 18 on the following conditions:-
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(a) the assessee would furnish the bank guarantee on or before 31.01.2023 of the differential amount i.e. 20% of disputed tax demand and the total refund adjusted for AYs 2012-13, 2013-14, 2015-16, 2020-21 and 2021-22, amounting to Rs.63,85,06,549/-.
The assessee is directed to furnish the remaining balance out of 20% of the disputed demand in the form of bank guarantee by 31.01.2023. Upon furnishing of such bank guarantee, the disputed tax demand would remain stayed for a period of six months or till the disposal of the appeal, whichever is earlier.
(b) the assessee would not seek any adjournment without any reasonable cause. Registry is directed to fix the hearing of appeal i.e. ITA No.2442/Del/2022 on 22.02.2023 out of turn basis.
7. In the result, the stay application filed by the assessee is allowed as terms indicated above.
S.A.No.347/Del/2022[In ITA Nos.2443/Del/2022]
8. Now, we take assessee's appeal in S.A.No.347/Del/2022 for the AY 2018-19.
9. We have heard Ld. Authorized representatives of the parties and perused the material available on record. We find that the facts and issues are similar and identical as in S.A.No.346/Del/2022 [AY 2017-18]. Ld. Representatives of the parties have adopted the same arguments.
Page | 12
10. Considering the material placed before us and the facts and the issues are identical in both stay applications. The assessee has a good prima facie case, we therefore, for the same reasoning, stay the disputed tax demand subject to the condition i.e. the assessee would furnish bank guarantee of the differential amount of 20% of the disputed tax demand. Upon furnishing of such guarantee, the disputed tax demand would remained stayed for a period of 180 days or till the disposal of the appeal, whichever is earlier. The requests of the assessee for taking up the corresponding appeal on out of turn basis is also allowed and the Registry is directed to fix the hearing of appeal i.e ITA No.2443/Del/2022 (AY 2018-19) on 22.02.2023 out of turn basis.
Thus, stay application filed by the assessee are allowed.
11. In the result, this stay filed by the assessee is allowed.
12. In the result, both stay applications filed by the assessee are allowed.
Order pronounced in the open Court on 23rd December, 2022.
Sd/- Sd/-
(G.S.PANNU) (KUL BHARAT)
PRESIDENT JUDICIAL MEMBER
* Amit Kumar *
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR
ITAT, NEW DELHI
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