Income Tax Appellate Tribunal - Delhi
Huawei Technologies Co. Ltd., China vs Dcit (International Taxation), ... on 22 March, 2018
INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "C": NEW DELHI
BEFORE SHRI H.S.SIDHU, JUDICIAL MEMBER
AND
SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER
SA No. 654 to 659/Del/2017
(In ITA No. 1500 and 6921/Del/2014, 937, 3676 & 6377/Del/2016 and
6799/Del/2017
(Assessment Year: 2009-10 to 2014-15)
Huawei Technologies Co. ltd, RR Vs. DCIT,
China, Circle Gurgaon,
Administration Building, International Taxation,
Headquarters of Huawei Gurgaon
Technologies Co. Ltd, Bantian,
Longgang District,
Shenzhen, China,
PAN: AACCH2982B
(Appellant) (Respondent)
Assessee by : Shri Taran Deep Singh, Adv
Revenue by: Shri GK Dhall, CIT DR
Date of Hearing 22/03/2018
Date of pronouncement 22/03/2018
ORDER
PER PRASHANT MAHARISHI, A. M.
1. These are the six stay petitions for six consecutive Assessment Year from Assessment Year 2009-10 to AY 2014-15 for which assessee has prayed to direct the ld Assessing Officer to keep the composite demand of Rs., 406 crores in abeyance till the disposal of appeals. Firstly, we would like to state that the revenue locked in these six appeals are as under:-
Assessment Year Amount (INR)
SA No.
654/Del/2017 2014-15 201038486/-
655/Del/2017 2009-10 1255241567/-
656/Del/2017 2010-11 797654778/-
657/Del/2017 2011-12 822907738/-
658/Del/2017 2012-13 758559675/-
659/Del/2017 2013-14 226786014/-
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2. It is interesting to note that the first stay in ITA No. 1500/Del/2014 for AY 2009-10 was granted by the coordinate bench on 29.08.2014. At that time the ld DR stated that the position stated on behalf of the assessee is correct and therefore, in other words if the order of the tribunal in case of assessee of earlier years is applied to the instant year, there will remain no demand payable by the assessee. This position was further reiterated for AY 2009-10 to AY 2013-14 on 23.12.2016. Further, the order dated 30.01.2017 in the stay petitions it was stated that coordinate bench has already decided the issue involved in all these appeals in case of assessee in its favour in its order for Assessment Year 2005-06 to 2008-09 vide order dated 21.03.2014 in ITA No. 5253 to 5256/Del/2011. Therefore, the stay was granted to the assessee. Further, since inception of appeal, it is agreed by the ld Departmental Representative that the issue is squarely covered in favour of the assessee. Therefore, there is no doubt in the mind of the revenue that the prima facie the assessee deserves stay of demand.
3. ITA No. 1500/Del/2014 for Assessment Year 2009-10 was instituted on 12.03.2014. According to the order sheet shown to us, this appeal has been listed for more than 20 times. The adjournment was sought by assessee on 7 occasion and revenue on 11 times. It is also noted that for last two occasions i.e. on 12.02.2018 and 22.03.2018 revenue has sought adjournment. ITA No. 6941/Del/2014 for AY 2010-11 was filed on 23.12.20014 and has faced the identical fate of seeking adjournment by both the parties. ITA No. 937/Del/2016 for AY 2011-12 filed on 24.02.2016 is also concurrently adjourned for the same reason. ITA No. 6376/Del/2016 for AY 2012-13 filed on 14.12.2016 both the parties have taken adjournment as in earlier years. ITA No. 6377/Del/2016 for AY 2013-14 filied on 14.12.2016 has also met the same fate. ITA No. 6799/Del/2017 for AY 2014-15 filed on 10.11.2017 was also adjourned on last three occasion by the parties.
4. Therefore, all the appeals one by one added to the list of pendency and are adjourned at the request of parties.
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5. We are really pained to see the pathetic approach adopted by both the parties in stalling the process of adjudication by the tribunal of these appeals. We are also pained to see that despite huge tax demand of Rs. 406 crores locked in these appeals, the parties are not making any efforts for disposal of these appeals but seeking adjournments, wasting precious time of court at the cost of exchequer. The dilatory approach of seeking frequent adjournment before the tribunal now deserves to be looked into with serious mind set and to be dealt with stern and firm approach by the tribunal. It is also painful to note that petitioner, though a foreign company, is also equally contributory to delay in disposal of these appeals and equal responsibility lies on the revenue. On the every date of hearing, which is fixed with the consent of both the parties, one of the parties tried to seek adjournment under the one or other pretext preventing the coordinate bench to adjudicate the matter. The menace of the „adjournment practice‟ has put the heavy burden on the tax payers of this country. In fact for each and every adjournment by the foreign company and the revenue, the honest tax payers of this country has funded the cost of the whole process of judicial battle.
6. In the economic survey presented for the year 2018 in Chapter No. 9 a serious concern about the adjournment menace was raised. Quoting the Hamlet "for who would bear the whips and scorns of time, the oppressors wrong .... the law's delay", it was explained. Frequent adjournment by the litigants is in fact causing the huge damage to the image of the country as a whole. This needs to be curbed sooner and with stern and definitive approach without hampering judicial approach.
7. Therefore, we take serious objection on the adjournment petitions filed by both the parties on relevant dates and henceforth direct that any adjournment petition acceded, it would be coupled with a cost on the parties, which is delaying the adjudication of these appeals. Such cost should go the Prime Minister‟s National Relief Fund.
8. Coming back to the stay petitions, it is stated by all the coordinate benches that the issue is squarely covered in favour of the assessee by the orders for the earlier years in assessee‟s own case. This fact has also Page | 3 been confirmed by the revenue time and again. On examination, issue involved in these appeals have been squarely dealt with by the coordinate bench in assessee‟s own case in ITA No. 5253 to 5256/ Del/2011 for Assessment Year 2005-06 to 2008-09 dated 21.03.2014. In context of issues, as stated by the coordinate bench, that they are covered by the decision of Hon'ble Jurisdictional High Court in case of DIT Vs. Ericson A.B. 204 Taxmann 192 (Delhi) and DIT Vs. Nokia Networks OI 212 Taxmann 6. It is further held that issue about the chargeability of income from software is also covered by the decision of the Hon'ble Delhi High Court in case of DIT Vs. Infrasoft Ltd. In view of these facts, assessee has established a prima facie case for stay of above demand. Therefore, balance of convenience lies in favour of the assessee and it deserves the stay.
9. In view of this, we direct the revenue to keep the outstanding demand of Rs. 406 crores locked in above six appeals in abeyance till the disposal of these appeals or 180 days from the date of this order, whichever expires earlier. No further adjournments will be granted without imposing substantial cost on the parties. Appeals are fixed for hearing with the consent of the parties on 25.04.2018. Accordingly, all six stay petitions filed by the assessee are allowed.
Order pronounced in the open court on 22/03/2018.
-Sd/- -Sd/-
(H.S.SIDHU) (PRASHANT MAHARISHI)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated: 22/03/2018
A K Keot
Copy forwarded to
1. Applicant
2. Respondent
3. CIT
4. CIT (A)
5. DR:ITAT
ASSISTANT REGISTRAR
ITAT, New Delhi
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