Income Tax Appellate Tribunal - Mumbai
Strides Pharma Sciences Ltd , Navi ... vs Asst Cit Cir 10(3), Mumbai on 21 December, 2020
IN THE INCOME TAX APPELLATE TRIBUNAL "J" BENCH, MUMBAI BEFORE SHRI PRAMOD KUMAR, VICE PRESIDENT & SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER SA No. 228/Mum/2020 (Assessment Years: 2008-09) (Arising out of ITA No. 124/Mum/2013) & SA No. 229/Mum/2020 (Assessment Years: 2009-10) (Arising out of ITA No. 2877/Mum/2014) Strides Pharma Science बनाम/ ACIT Ltd.,(Earlier known as Vs. Circle -10(3) 'Strides Shasun Ltd., / Mumbai.
Strides Arcolab Ltd., 201, Devavrata, Sector 17, Vashi, Navi Mumbai - 400 703 थायी ले खा सं . /जीआइआर सं . / PAN/GIR No. : AADCS8104P (अपीलाथ /Appellant) .. ( यथ / Respondent) अपीलाथ ओर से /Appellant by : Shri P.J. Pardiwalla, AR यथ क ओर से/Respondent by : Shri Manpreet S. Duggal, DR ु वाई क तार ख / सन Date of Hearing 18/12/2020 घोषणा क तार ख /Date of Pronounce ment 21/12/2020 आदे श / O R D E R PER PAVAN KUMAR GADALE - JM:
The assessee has filed the stay petitions S.A No. 228/Mum/2020 for the A.Y 2008-09 in ITA No. -2- 124/Mum/2013 and S.A No. 229/Mum/2020 for the A.Y 2009-10 in ITA No. 2877/Mum/2014 for stay of recovery of outstanding demand.
A.Y. Tax Rs. Interest Rs.
2008-09 18,93,56,614 18,40,43,006
2009-10 42,37,44,359 25,08,64,524
Since the issues are similar and identical in both the Stay applications, for the sake of convenience we shall take up the S.A.228/M/2020 for the A.Y.2008- 09 and the facts narrated in the Stay Application.
2. The Ld.AR of the assessee submitted that the assessee company is engaged in the business of manufacturing and marketing of pharmaceutical products. The return of income was filed electronically on 30.09.2008 disclosing a total loss of Rs. 69,75,59,894/-.Subsequently, the revised return of income was filed on 26.03.2010 with a total loss of Rs.93,26,73,915/-.The case was selected for scrutiny and the draft assessment order under Sec.144C(1) of the Act was passed with transfer pricing adjustments on 31.03.2011 determining total income of Rs.
-3-1,26,98,24,590/-.Aggrieved by the draft assessment order, the assessee has filed objections in Form no 35A before the DRP. The DRP has granted relief and issued directions u/sec144C (5) of the Act vide order dated 07.09.2012. The Assessing officer, pursuant to directions of the DRP, has passed the final Assessment order u/s 143(3) r.w.s 144C(13) of the Act determining total income of Rs.199,19,34,388/-. The assessee has filed an appeal against the final assessment order with the Hon'ble Tribunal and is pending for hearing. Mean while, Since there were mistake apparent on record in the final assessment order, the assessee has filed a rectification petition on 2-02-2013.The rectification petition order u/s 154 of the Act was passed on 05.03.2013 determining the total income of Rs. 96,43,17,700/-.
3. The Ld. AR also submitted that the outstanding demand for the A.Y 2008-09 is Rs.37,33,99,620/- which includes interest component of Rs.18,40,43,006/-. Similarly for the A.Y 2009-10, the outstanding demand is Rs.67,46,08,881/- including interest of Rs. 25,08,64,524/-. Whereas, the assessee company has paid Rs.18,29,81,691/- against the tax -4- demand of Rs.18,93,56,614/-for the A.Y 2008-09 which is more than 95% of the outstanding tax demand and is not disputed by the revenue. Similarly for the A.Y 2009-10 the assessee company has paid Rs.39,83,43,359/-against the Tax demand of Rs. 42,37,44,357/- and the said amount paid is more than 90% of the tax demand and is not disputed. Further, the assessee has a good case on merits, as the additions made by the A.O. in assessee's own case for the A.Y 2007-08 and 2014-15 were allowed in favour of the assessee and demonstrated the copy of the orders of the Hon'ble Tribunal. Therefore, considering the facts of payment of tax liability being more than 90% of Tax Demand, The Hon'ble tribunal orders, and the financial hardship of the assessee company, the Ld. AR prayed for stay of outstanding demand and allow the stay petitions filed by the Assessee.
4. Contra, the Ld.DR raised objections on granting of stay of recovery of outstanding demand and further submitted that the appeals are posted in J Bench of Hon'ble Tribunal for hearing on 31.12.2020.Hence there is no necessity for granting of stay as the -5- assesses appeals can be heard on the said date and pleaded for dismissal of stay petitions.
5. We heard the rival submissions and perused the material on record and the stay applications filed. Prima facie, the Ld.AR submitted that, the assessee company has paid more than 90% of the outstanding tax demands for the A.Y.2008-09 and 2009-10 and has a good case on merits. Further the Ld.AR supported his submissions referring to the Orders of Hon'ble Tribunal in the assessee's own case for the A.Y 2007-08 and 2014-15 on the similar point of disputes, which are allowed in favour of the assessee. The Ld.AR emphasized that, there is no doubt on the appeals posted for hearing on 31.12.2020 in J Bench of Hon'ble Tribunal, but the Assessing officer is trying to adjust the Tax refunds relating to A.Y 2014- 15 and 2017-18, in spite of the assessee company has paid more than 90% of Tax Demand for the A.Y.2008-09 and 2009-10.
We considered the submissions of the Ld.AR on the prima facie case on merits, payment of tax demands and the Orders of Hon'ble Tribunal. We find the Ld -6- DR has submitted that, the appeals are posted for hearing in J Bench of Hon'ble Tribunal on 31.12.2020. But as per the constitution of Benches of Hon'ble Tribunal dated 16-12-2020 for the period from 28.12.2020 to 31.12.2020.The 'J' Bench is not functioning and therefore the appeals posted for hearing on 31.12.2020 as envisaged by Ld.DR cannot be heard due to non function of the Bench.
The Ld. AR demonstrated the orders of the Hon'ble Tribunal for the A.Y. 2007-08 and 2014-15 on the similar disputed issues, where the relief was granted to the assessee. Considering the overall facts, payment of taxes by the assessee, and the appeals could not be heard on 31.12.2020 due to non functioning of the J Bench of Hon'ble Tribunal which is not attributable to the assessee. We find the balance of convenience lies in favour of the assessee in granting the stay of collection of outstanding demand. Accordingly, we grant stay of recovery of outstanding demand for a period of 180 days from the date of order or till the disposal of the appeal whichever is earlier. We also direct the registry to post the appeals for hearing on 04.01.2021 as first on -7- board (FOB).Since the date of hearing is pronounced in the open court before both the parties, there is no need to issue separate notice of hearing and we order accordingly.
5. In the result, both the stay petitions filed by the assessee are allowed.
Order pronounced in the open court on 21.12.2020 Sd/- Sd/-
(PRAMOD KUMAR) (PAVAN KUMAR GADALE ) VICE PRESIDENT JUDICIAL MEMBER Mumbai, Dated 21 /12/2020 KRK, PS आदे श क त ल प अ े षत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent.
3. संबं'धत आयकर आयु)त / The CIT(A)
4. आयकर आयु)त(अपील) / Concerned CIT
5. ,वभागीय /त/न'ध, आयकर अपील य अ'धकरण, अहमदाबाद / DR, ITAT, Mumbai
6. गाड4 फाईल / Guard file.
आदे शानुसार/ BY ORDER, स या,पत /त //True Copy//
1. उप/सहायक पंजीकार ( Asst. Registrar) आयकर अपील य अ!धकरण, अहमदाबाद / ITAT, Mumbai