Income Tax Appellate Tribunal - Kolkata
Sika India Private Limited, Kolkata vs Acit, Circle - 12(2), , Kolkata on 1 March, 2019
S.A. Nos. 17, 18, 19, 20, 21/KOL/2019
(in ITA Nos. 575/Kol/2015, 911/KOL/2016,
627, 2214/KOL/2017 & 2024/KOL/2018)
A.Ys. 2010-2011 to 2014-2015
Sika India Private Limited
IN THE INCOME TAX APPELLATE TRIBUNAL,
KOLKATA 'C' BENCH, KOLKATA
Before Shri P.M. Jagtap, Vice-President (KZ)
and Shri S.S. Viswanethra Ravi, Judicial Member
S.A. Nos. 17, 18, 19, 20, & 21/KOL/2019
(arising out of I.T.A. Nos. 575/KOL /2015, 911/KOL /2016,
627/KOL/2017, 2214/KOL /2017 & 2024/KOL/2018)
Assessment Years: 2010-2011 t o 2014-2015
Sika Indi a Private Li mited,..................................................Applicant
Commercial Complex-II,
620, Diamond Harbour Road,
Kolkata-700 034
[PAN: AAECS 1119 F]
-Vs.-
Deputy Commissioner of Income Tax,........ ........................Respondent
Circle-11, Ko lkata,
Aayakar Bhawan,
P-7, Chowringhee Square,
Kolkata-700 069
Appearances by:
Shri Himansu Sinh a, Advocate, for the Applicant
Shri C.J. Singh, Sr. D.R. , for the Respondent
Date of concluding th e hearing : March 01, 2019
Date of pronouncing the order : March 01, 2019
O R D E R
Per Shri P.M. Jagtap, Vice-President (KZ):-
By these Stay Applications, the assessee is seeking stay of total outstanding demand of Rs.38,36,73,973/- for A.Ys. 2010-11 to 2014-15.1
S.A. Nos. 17, 18, 19, 20, 21/KOL/2019 (in ITA Nos. 575/Kol/2015, 911/KOL/2016, 627, 2214/KOL/2017 & 2024/KOL/2018) A.Ys. 2010-2011 to 2014-2015 Sika India Private Limited
2. The ld. Counsel for the assessee submitted that the outstanding demand for the five years under consideration, which is being sought to be stayed by the assessee has arisen mainly on account of additions made to the total income of the assessee by way of Transfer Pricing Adjustment in respect of International Transactions entered into by the assessee with its Associated Enterprises involving Intra-Group Services and Royalty paid for technical knowhow. He has submitted that both these issues were involved in assessee's own case for the immediately preceding year, i.e. A.Y. 2009-10 and the Tribunal vide its order dated 10 t h October, 2018 passed in ITA Nos. 393 & 402/KOL/2014 has decided the issue relating to the Transfer Pricing Adjustment in respect of royalty paid for technical knowhow in favour of the assessee. He has submitted that the Tribunal vide its order dated 10.10.2018 (supra) has also allowed the assessee a substantial relief on the issue of Transfer Pricing Adjustment made in respect of Intra-Group Services and finally remanded the matter to the Assessing Officer/Transfer Pricing Officer for determining Arm's Length Price of the said transactions with certain directions. He has submitted that a similar issue involved in assessee's own case thus is liable to be remanded to the Assessing Officer/TPO even in the years under consideration and if the appeals of the assessee for the years under consideration are disposed of by the Tribunal by following its order dated 10.10.2018 (supra) for the immediately preceding year on the similar issue, the total demand for the years under consideration is likely to be reduced to Rs.1.80 crores. He has submitted that since the assessee has already paid a sum of Rs.3.99 crores against the outstanding demand and is also ready for the adjustment of refund of Rs.1.48 crores due for A.Y. 2018-19 as per the return of income filed on 30.11.2018 against the outstanding demand, the balance outstanding demand may be directed to be stayed.
2S.A. Nos. 17, 18, 19, 20, 21/KOL/2019 (in ITA Nos. 575/Kol/2015, 911/KOL/2016, 627, 2214/KOL/2017 & 2024/KOL/2018) A.Ys. 2010-2011 to 2014-2015 Sika India Private Limited
3. The ld. D.R., on the other hand, has opposed these Stay Applications filed by the assessee and submitted that if the Tribunal is inclined to grant the stay of outstanding demand, the assessee may be directed to pay some more amount against the outstanding demand.
4. We have considered the rival submissions and also perused the relevant material available on record. It is observed that the amount of outstanding demand for all the five years under consideration has arisen mainly as a result of additions made to the total income of the assessee on account of Transfer Pricing Adjustment in respect of the International Transactions entered into by the assessee with its Associated Enterprises involving Intra-Group Services and Royalty paid for technical knowhow. It is also observed that similar issues were involved in assessee's own case for A.Y. 2009-10 and the Tribunal has already decided the same vide its order dated 10.10.2018 (supra). As submitted by the ld. Counsel for the assessee, if the appeals of the assessee for the years under consideration are disposed of by the Tribunal by following the said order of the Tribunal for A.Y. 2009-10 on similar issues, the total demand for all the five years under consideration will come down to Rs.1.80 crores. Since the assessee has already paid a sum of Rs.3.99 crores against the outstanding demand which is more than double of the said amount and the assessee is also ready to pay a further amount of Rs.1.48 crores by way of adjustment of refund due to it for A.Y. 2018-19, we are of the view that the balance of convenience clearly lies in favour of the assssee and it is a fit case to stay the outstanding demand for the years under consideration. We accordingly direct the Assessing Officer to adjust the refund of Rs.1.48 crores due to the assessee for A.Y. 2018-19 against the outstanding demand and stay recovery of the balance outstanding demand for the years under consideration for a period of five years or till 3 S.A. Nos. 17, 18, 19, 20, 21/KOL/2019 (in ITA Nos. 575/Kol/2015, 911/KOL/2016, 627, 2214/KOL/2017 & 2024/KOL/2018) A.Ys. 2010-2011 to 2014-2015 Sika India Private Limited the disposal of the appeals of the assessee by the Tribunal for the years under consideration, whichever is earlier.
5. In the result, the Stay Applications of the assessee are allowed.
Order pronounced in the open Court on March 01, 2019.
Sd/- Sd/-
(S.S. Viswanethra Ravi) (P.M. Jagtap)
Judicial Member Vice-President (KZ)
Kolkata, the 1 s t day of March, 2019
Copies to : (1) Sika Indi a Private Li mited,
Commercial Complex-II,
620, Diamond Harbour Road,
Kolkata-700 034
(2) Deputy Commissioner of Income Tax,
Circle-11, Ko lkata,
Aayakar Bhawan,
P-7, Chowringhee Square, Kolkata-700 069
(3) Commissioner of Income Tax (Appeals)----, Kolkata, (4) Commissio ner of Income Tax , (5) The Depart ment al Represent ative (6) Guard File By order Assistant Registrar, Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S. 4