Income Tax Appellate Tribunal - Delhi
Religare Enterprises Ltd., Noida vs Acit, Circle-19(1), Delhi on 25 February, 2022
Author: G.S. Pannu
Bench: G.S. Pannu
IN THE INCOME TAX APPELLATE TRIBUNAL,
DELHI BENCH: 'I-2' NEW DELHI
BEFORE SHRI G.S. PANNU, HON'BLE PRESIDENT
AND
SHRI SAKTIJIT DEY, JUDICIAL MEMBER
S.A. No.62/Del/2022
(Arising out of ITA No.332/Del/2022)
Assessment Year: 2017-18
M/s. Religare Enterprises Vs. ACIT,
Ltd., Circle-19(1),
Plot No. A-3, 4 and 5, Club Delhi
125, Tower -B, Sector-125,
Noida
PAN :AAACV5888N
(Applicant) (Respondent)
Applicant by Sh. Ajay Vohra, Sr. Advocate
Sh. Rohit Jain, Advocate
Sh. Deepesh Jain, Advocate
Respondent by Sh. Umesh Takyar, Sr.DR
Date of hearing 25.02.2022
Date of pronouncement 25.02.2022
ORDER
PER SAKTIJIT DEY, JM:
Captioned application has been filed by the assessee seeking stay on recovery of outstanding demand aggregating to Rs.139,95,65,746/-, pertaining to assessment year 2017-18. 2 S.A. No.62/Del/2022
AY: 2017-18
2. While seeking stay on recovery of outstanding demand sh. Ajay Vohra, learned Senior Counsel, submitted, the demand is as a result of following three additions/disallowances:
(i) Disallowance of long term capital loss arising out of sale of investments in preference shares of Religare Capital Market Ltd. (RCML)
(ii) Disallowance of long term capital loss and short term capital loss arising on sale of shares of Religare Global Asset Management Inc. (RGAM Inc.)
(ii) TP adjustment with respect to commission imputed on guarantee issued for grant of loan to AE.
3. He submitted, major part of the demand is due to additions/disallowances enumerated at serial no. (i) and (ii) above. He submitted, the dispute relating to the issue of long term capital loss arising out of sale of investments in preference shares of RCML is also in dispute in assessment year 2016-17. He submitted, considering the prima facie case, the Tribunal has granted stay on recovery of demand in assessment year 2016-17. He submitted, if this issue is allowed in assessee's appeal for assessment year 2016-17, then there would be no demand to be paid for the impugned assessment year, as, the loss for assessment year 2016-17 would be available for set off in the impugned assessment year. Further, he submitted, while completing the assessment, the Assessing Officer has not allowed brought forward long term and short term capital losses of 3 S.A. No.62/Del/2022 AY: 2017-18 assessment year 2013-14 as well as assessed brought forward long term capital loss of assessment year 2016-17, for which, rectification application filed by the assessee under section 154 of the Act is still pending before the Assessing Officer. He submitted, if such losses of assessment year 2013-14 and 2016-17 are allowed to be set off against the income of the impugned assessment year, no demand would survive. Without prejudice to the aforesaid submission, learned counsel for the assessee submitted, the assessee is entitled to refund due pertaining to various assessment years. He submitted, in assessment year 2017-18 itself, the assessee is entitled to refund of Rs.17,06,92,591/- He submitted, while processing the return filed by the assessee, CPC had adjusted the refund granted of Rs. 5,05,97,290/- relating to the impugned assessment year against the demand of assessment year 2016-17 despite operation of stay granted by the Tribunal. He submitted, since, prepaid tax credit appearing in the PAN of certain merged entities, which was claimed by the assessee on account of TDS pursuant to the order of NCLT was not allowed at the time of filing of return, the assessee had filed an application under Section 154 of the Act on 05.12.2019. He submitted, accepting the mistake committed, the 4 S.A. No.62/Del/2022 AY: 2017-18 Assessing Officer has passed an order under section 154 of the Act on 05.08.2020 computing the refund due to the assessee, which after adjustment of refund of Rs.5,05,97,290/- against the demand for assessment year 2016-17, works out to Rs.12,00,95,301/-. He submitted, in spite of the order passed under Section 154 of the Act, neither learned DRP, nor Assessing Officer has given the consequential benefit, for which reason, the assessee has again filed an application under section 154 of the Act, which is pending before the Assessing officer. Thus, he submitted, the refund amount of Rs.12,00,95,301/- is still available with the department and can be adjusted against the impugned demand. Finally, he submitted, the appeal for the assessment year 2016-17 is now fixed for hearing on 6th April, 2022. He submitted, since the issues are identical, the appeal for the impugned assessment year can also be tagged with the appeal for the assessment year 2006-07 and kept for hearing on 06.04.2022.
4. Learned Departmental Representative opposed grant of absolute stay and submitted that the Tribunal may direct for adjustment of the refund due against the demand for the impugned assessment year.
5S.A. No.62/Del/2022
AY: 2017-18
5. Having heard the parties and perused the materials on record, we are of the view, assessee's contention that issues relating to the disputed additions made in the impugned assessment year will be fully covered by the decision to be taken by the Tribunal in assessment year 2016-17, has to be examined by the Bench before which assessee's appeal for assessment year 2016-17 is coming up for hearing on 06.04.2022. However, considering the submission of learned counsel for the assessee that issues arising in both these appeals are common, we direct the registry to fix the appeal for the instant assessment year 2017-18 on 06.04.2022 alongwith the proceedings fixed for assessment year 2016-17. As an interim measure, we direct the following:
1. The Assessing Officer is directed to dispose off rectification application filed by the assessee seeking set off of long term and short term capital loss of assessment years 2013-14 and 2016-17 and accordingly crystallize the demand for assessment year 2017-18
2. The Assessing Officer is directed to work out the refund due to the assessee in terms of order dated 05.08.2020 6 S.A. No.62/Del/2022 AY: 2017-18 passed u/s 154/143(1) of the Act for assessment year 2017-18 and, in case, there is a refund due to the assessee, let it be adjusted against the outstanding demand of the impugned assessment year.
3. The Assessing Officer must carry out the directions given above within a period of one month.
4. Till the aforesaid exercise is completed by the Assessing Officer, we deem it appropriate to grant interim protection to the assessee by directing the Assessing Officer not to take any coercive action for recovery of the outstanding demand till the next date of hearing on
06.04.2022
6. We make it clear, it is open to the Bench before which the corresponding appeal is fixed for hearing on 06.04.2022 to vary/review the conditions of stay, depending upon the factual position prevailing as on the date of hearing.
7. In the result, this application is partly allowed, as indicated above.
Order pronounced in the open court on 25th February, 2022 Sd/- Sd/-
(G.S. PANNU) (SAKTIJIT DEY)
PRESIDENT JUDICIAL MEMBER
7
S.A. No.62/Del/2022
AY: 2017-18
Dated: 25th February, 2022.
RK/-
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(A)
5. DR
Asst. Registrar, ITAT, New Delhi