Income Tax Appellate Tribunal - Chennai
Bny Mellon Technology Private Limited, ... vs Dcit Corporate Circle 1(2), Chennai on 27 August, 2019
आयकर अपील य अ धकरण, डी' यायपीठ, चे नई
IN THE INCOME TAX APPELLATE TRIBUNAL
'D' BENCH : CHENNAI
ी जॉज माथन, या यक सद य एवं
ी इंटूर रामा राव, लेखा सद य के सम
BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND
SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER
S.P.No. 244/CHNY/2019
( आयकर अपील सं./I.T(TP) No.65/CHNY/2018)
नधा रण वष /Assessment year : 2014-2015.
BNY Mellon Technology Private Ltd, The Deputy Commissioner of
(formerly known as iNautix Vs. Income Tax Officer,
Technologies India Pvt. Ltd) Corporate Circle 1(2)
10th floor, Tidel Park, Chennai.
4, Canal Bank Road,
Taramani, Chennai 600 113.
[PAN AAACI 6177K]
(Petitioner) ( यथ /Respondent)
Petitioner by : Shri. N.V. Balaji, Adv
Respondent by : Shri. AR.V. Sreenivasan, IRS,
JCIT.
सन
ु वाई क% तार ख/Date of Hearing : 23-08-2019
घोषणा क% तार ख /Date of Pronouncement : 27 -08-2019
आदे श / O R D E R
PER INTURI RAMA RAO, ACCOUNTANT MEMBER:
The present stay petition is filed by the assessee seeking extension of stay granted by this Tribunal vide its order dated 17.05.2019 which expired on 15th August, 2019.
:- 2 -: SP No.244/2019.
2. It is contended that the delay in disposing the appeal is not attributable to the assessee company, therefore the earlier stay granted should be extended for further period.
3. On the other hand, the ld. Sr. Departmental Representative vehemently opposed granting extension of stay.
4. We heard the rival submission and perused the material on record. In the present case originally the stay was granted by this Tribunal vide order dated 9.11.2018 in SP No.350/CHNY/2018 for a period of six months subject to payment of E7.5 Crores. No doubt, the petitioner had compiled with the conditionality attached to the stay order. The stay was further extended by an order dated 17.05.2019 in SP No.150/CHNY/2019 for a period of ninety days, which expired on 15th August, 2019 and the present stay petition was filed on 14.08.2019. The averment made by the assessee that the delay in disposing the appeal is not attributable to the assessee is incorrect and false. From the perusal of the order sheet in IT(TP) No. 65/CHNY/2018 dated 11.06.2019 and 20.08.2019 which are extracted below would reveal that it is only assessee who sought adjournment of appeal for one reason or other.
:- 3 -: SP No.244/2019.
''the hearing is adjd. to 20/08/2019 at the request of ld. AR's letter on record also ITA 712/18, ITA 698/17. Parties informed.
Sd/- Sd/-
(Shri. SJ/AM) (Sh. DRR/JM)
''the hearing is adjd. to 11/12/2019 at the request of ld. AR's letter on record also ITA 712/18, ITA 698/17. Parties informed.
Sd/- Sd/-
(Shri. DRR/AM) (Sh. GM/JM)''
Therefore the principle enunciated by the Hon'ble Delhi High Court in the case of Pepsi Foods P. Ltd vs. Asst. Commissioner of Income Tax and Another, (2015) 376 ITR 87 cannot come to the aid of the petitioner. Therefore, the present petition is required to be disposed of keeping in view the parameters laid down by Hon'ble Supreme Court in the case of Asst. Collector of Central Excise vs.Dunlop India Ltd. (1985) 154 ITR 172. The Hon'ble Supreme Court had laid down that the following three parameters should be taken into consideration at the time of grant of stay of demand by the appellate authorities:
i. Existence of prima facie case
ii. Financial hardship, and
iii. Irreparable injury and balance of convenience.
:- 4 -: SP No.244/2019.
The Hon'ble Supreme Court held as follows in para.6:
"6. . . . All this is not to say that interim orders may never be made against public authorities. There are, of course, cases which demand that interim orders should be made in the interests of justice. Where gross violations of the law and injustices are perpetrated or are about to be perpetrated, it is the bounden duty of the Court to intervene and give appropriate interim relief. In cases where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizen's faith in the impartiality of public administration, a Court may well be justified in granting interim relief against public authority. But since the law presumes that public authorities function properly and bona fide with due regard to the public interest, a Court must be circumspect in granting interim orders of far- reaching dimensions or orders causing administrative, burdensome inconvenience or orders preventing collection of public revenue for no better reason than that the parties have come to the Court alleging prejudice, inconvenience or harm and that a prima facie case has been shown. There can be and there are no hard and fast rules. But prudence, discretion and circumspection are called for. There are several other vital considerations apart from the existence of a prima facie case. There is the question of balance of convenience. There is the question of irreparable injury. There is the question of the public interest. There are many such factors worthy of consideration......... "
Again vide para. 9 held as follows:
"9. . . . Even assuming that the company had established a prima facie case, about which we do not express any opinion, we do not think that it was sufficient justification for granting the interim orders as was done by the High Court. There was no question of any balance of convenience being in favour of the respondent- company. The balance of convenience was certainly in favour of the Government of India. Governments are not run on mere bank guarantees. We notice that very often some Courts act as if furnishing a :- 5 -: SP No.244/2019.
bank guarantee would meet the ends of justice. No Governmental business or for that matter no business of any kind can be run on mere bank guarantees. Liquid cash is necessary for the running of a Government as indeed any other enterprise. We consider that where matter of public revenue are concerned, it is of utmost importance to realize that interim orders ought not to be granted merely because a prima facie case has been shown. More is required. The balance of convenience must be clearly in favour of the making of an interim order and there should not be the slightest indication of a likelihood of prejudice to the public interest ....."
Thus the petition is required to be considered keeping in view of existence of prime facie case on the merits of the issue on the appeal, the questions of balance of convenience and the irrecoverable damage which includes financial hardship. Keeping this parameters in view, we proceed to dispose off present petition. It cannot be said that there is prima facie case in favour of the petitioner as the demand in question had arisen on account of addition of Arms Length Price adjustment u/s.92CA of the Act. The addition of Arms Length Price adjustment involves verification of factual aspects of the issue and therefore it cannot be said that there is a prime facie case in favour of the assessee company and the assessee company had not made out any case as to the balance of convenience and irreparable injury and financial hardship. Recently the Hon'ble Jurisdictional High Court in the case of Mrs. Kannammal vs. ITO, (2019) 413 ITR 390 :- 6 -: SP No.244/2019.
had reiterated that grant of stay should be considered on three factors i.e. prima facie case, financial stringency and the balance of convenience. Financial stringency would include within its ambit the question of irreparable injury and undue hardship. Thus keeping in view the settled principles of law governing the stay of the demand, the petition cannot be allowed. Accordingly, there is no merits in the present stay petition filed by the assessee as the assessee company had failed to demonstrate the fulfillment of any of conditions mentioned above. Accordingly, the stay petition filed by the assessee company is dismissed.
5. In the result, stay petition filed by the assessee company stands dismissed.
Order pronounced on 27th day of August, 2019, at Chennai.
Sd/- Sd/-
(जॉज माथन) (इंटूर रामा राव)
(GEORGE MATHAN) (INTURI RAMA RAO)
या यक सद य/JUDICIAL MEMBER लेखा सद य/ACCOUNTANT MEMBER
चे नई/Chennai
*दनांक/Dated:27th August, 2019.
KV
आदे श क% - त.ल/प अ0े/षत/Copy to:
1. अपीलाथ1/Appellant 3. आयकर आयु2त (अपील)/CIT(A) 5. /वभागीय - त न7ध/DR
2. -8यथ1/Respondent 4. आयकर आयु2त/CIT 6. गाड फाईल/GF