Income Tax Appellate Tribunal - Mumbai
Ashok Govindji Chauhan, vs Acit 20(1), on 31 March, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL,
MUMBAI BENCH "A", MUMBAI
BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND
SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER
SA No. 217/Mum/2017
(Arising out of ITA No. 1309/M/2016)
Assessment Year: 2010-11
Shri Ashok Govindji Chauhan. Asstt. Commissioner of Income
F;at No. 301/B, Tax - 20(1),
Veena Beena Apartment, Mumbai.
v.
Acharya Dhonde Marg,
Sewree,
Mumbai - 400027
PAN: AABPC7897A
(Appellant) (Respondent)
Applicant by Shri Haresh P. Shah
Respondent by Shri Rajesh Kumar Yadav,DR
Date of Hearing : 31-03-2017
Date of Pronouncement : 31-03-2017
ORDER
Per Ramit Kochar, Accountant Member:
The assessee has filed this stay application bearing SA no. 217/Mum/2017 arising out of ITA no. 1309/Mum/2016 for assessment year 2010-11 , seeking stay of outstanding total demand of Rs.76,55,017/- towards tax and interest thereon which was raised against the assessee by Revenue vide notice of demand dated 13-11-2014 under section 156 of the Income-tax Act,1961 in pursuance of the assessment framed u/s 143(3) r.w.s. 147 of 1961 Act vide assessment orders dated 13.11.2014. It is the say of the learned counsel for the assessee that the assessments have been framed u/s 143(3) r.w.s. 147 of the Act for the impugned assessment year 2010-11 , wherein a demand of tax and interest thereon of Rs. 1,46,01,870/- was raised by Revenue 2 SA No217/M/2017 (Arising out of ITA No.1309/M/2016) against the assessee and the assessments framed by AO was confirmed by the ld. CIT(A) vide his appellate order dated 20th January, 2016 , wherein major addition of long term capital gain of Rs. 8,50,00,000/- arising out of surrender of tenancy rights were confirmed by learned CIT(A). It is the say of the ld. Counsel for the assessee that the assessee had not given the possession during the impugned year under appeal of the property whose tenancy rights were surrendered , but the possession was given only on 29th January, 2011 which falls in the immediately succeeding previous year and hence the Revenue has erred in making the addition of Rs. 8.50 crores. It is the say of the ld. Counsel for the assessee that the capital gain arising from the surrender of tenancy rights was offered for taxation in the subsequent assessment year, wherein the Revenue has made protective assessment. It is the say of the learned counsel for the assessee that the assessee re-invested the proceeds and was entitled for exemption u/s 54F of 1961 Act but the same was not allowed by Revenue . It is the say of the ld. Counsel that out of the total outstanding demand of tax and interest thereon of Rs. 1,48,94,369/- raised by the Revenue vide notice of demand dated 13.11.2014 u/s 156 of 1961 Act against the assessee, the assessee has already paid an amount of Rs. 72,39,352/- towards tax and interest thereon and balance outstanding amount due for payment is Rs. 76,55,017/- towards tax and interest thereon. Thus, the ld. Counsel submitted that almost 50% of the demand has already been paid by the assessee. It is submitted that the Revenue has attached bank accounts of the assessee which are placed at page 10 & 12. It is further submitted by the ld. Counsel that the Revenue is threatening to take coercive measures against the assessee and garnishee notices are issued to the debtor which are placed in file at page 17 & 18. It is also submitted that stay applications filed before authorities below , were also rejected by Revenue. The said rejection letters of stay application are placed in file at page 12. Thus, the assessee prayed for stay of the remaining outstanding demand towards tax and interest. The ld. Counsel further submitted that prima facie the assessee is having a good case in succeeding in the appeal and 3 SA No217/M/2017 (Arising out of ITA No.1309/M/2016) balance of convenience is in favour of the assessee, if an early out of turn hearing is fixed, the assessee will argue the case on merits and appeal may be disposed of on merits by ITAT at the earliest. It is also prayed that attachment of bank accounts be ordered to be lifted and Revenue be directed not to take coercive measures against the assessee.
2. The ld. D.R. submitted that the ld. CIT(A) confirmed the major additions of Rs. 8.50 crores made by AO to the income of the assessee and the assessee may be directed to deposit the balance amount outstanding of tax and interest accrued thereon against him.
3. We have considered rival contentions and also perused the material on record. We have observed that assessments were re-opened u/s 147 of 1961 Act wherein notice dated 05-03-2014 u/s 148 of the Act was issued against the assessee by Revenue which culminated into an assessment order dated 13.11.2014 u/s 143(3) r.w.s. 147 of 1961 Act passed by the AO and notice of demand dated 13.11.2014 u/s 156 of the Act was issued to the assessee raising an demand of tax and interest thereon of Rs. 1,46,01,870/- against the assessee. The major additions of Rs. 8,50,00,000/- was made by Revenue towards long term capital gains arising from surrender of tenancy rights , which major addition was later confirmed by learned CIT(A) in first appeal vide appellate order dated 20- 01-2016. The assessee is in appeal before ITAT challenging the said confirmation of addition of Rs. 8,50,00,000/- by learned CIT(A). The assessee has submitted before us that the said amount was already reinvested and the assessee was entitled to exemption u/s 54F of 1961 Act. The assessee has also submitted that the capital gain arising from the surrender of tenancy rights was offered for taxation in the subsequent year , wherein the Revenue has made protective assessment. We find that the assessee has already paid around 50% of the outstanding demand towards tax 4 SA No217/M/2017 (Arising out of ITA No.1309/M/2016) and interest accrued thereon raised vide notice of demand dated 13.11.2014 u/s 156 of 1961 Act. We also note that there , would , however, be further liability towards interest accrued thereon under Section 220(2) of 1961 Act post raising of demand vide notice of demand dated 13.11.2014 u/s 156 of 1961 Act by Revenue. Keeping in view of the factual matrix of the case and in the interest of jsutice without commenting on merits of the case, the balance outstanding demand of tax and interest thereon in the instant case is directed to be stayed for a period of 180 days or till disposal of the appeal, whichever is earlier. The Revenue is directed not to take any coercive measures against the assessee till stay granted by us is in operation . The assessee is directed to produce the paid challans/evidences of having made payment of Rs. 72,39,352/- before the AO for verification and reconciliation . We are fixing the appeal for hearing on out of turn basis on 11-05-2017 before regular bench. The assessee is directed not to seek any adjournments except on the exceptional genuine and bonafide reasons and co-operate so that appeal may be disposed of at the earliest by ITAT on merits. Both the parties have noted the above stated dates as well terms and conditions of this stay granted by us which were announced in the open court. At the cost of repetition, we would like to reiterate that we have not commented on the merits of the issue's arising in appeal. We order accordingly.
4. In the result, this stay application filed by the assessee is allowed in accordance with the terms and conditions as narrated above.
Order pronounced in the open court on 31st March, 2017.
Sd/- sd/-
(SAKTIJIT DEY) (RAMIT KOCHAR)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Mumbai, Dated: 31.03.2017.
5 SA No217/M/2017
(Arising out of ITA No.1309/M/2016)
R.K., Ex. Sr. P.S.
Copy to: The Appellant
The Respondent
The CIT, Concerned, Mumbai
The CIT (A) Concerned, Mumbai
The DR Concerned Bench A
//True Copy// [
By Order
Dy/Asstt. Registrar, ITAT, Mumbai.