Income Tax Appellate Tribunal - Mumbai
China First Metallurgical India Pvt. ... vs Dcit Panvel Circle, Panvel on 1 September, 2017
आयकर अपीऱीय अधिकरण "K" न्यायपीठ मब
ुं ई में ।
IN THE INCOME TAX APPELLATE TRIBUNAL "K" BENCH, MUMBAI
BEFORE SHRI C N PRASAD, JUDICIAL MEMBER AND
SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER
SA Nos. 384/Mum/2017
Arising out of ITA No . 2132/Mum/2016
Assessment Year 2011-12
SA Nos. 385/Mum/2017
Arising out of ITA No . 1226/Mum/2017
Assessment Year 2012-13
China First Mettallurgical Dy. Commissioner of Income Tax
Construction India Private Panvel Circle, Panvel
Limited, Flat No. 1-B/1302, 13th 3rd Floor, Trifed Tower
floor, Bhoomi Paradise, Sector- v. Opp. Khanda Colony , New
11 ,Sanpada(E), Panvel-410206
Navi Mumbai-400705
PAN AACCC4228P
Applicant Respondent
Applicant by Ms.Ritika Aggarwal
Respondent by Shri Jayant Kumar, CIT DR
Date of Hearing : 01-09-2017
Date of Pronouncement : 01-09-2017
ORDER
PER RAMIT KOCHAR, Accountant Member :
1. The assessee has filed these two stay applications bearing number's SA no. 384/Mum/2017 arising out of ITA no. 2132/Mum/2016 for assessment year 2011-12 and also SA 2 SA No. 384 & 385 /Mum/2017 no. 385/Mum/2017 arising out of ITA no. 1226/Mum/2017, seeking extension of stay already granted of outstanding demand of tax and interest for the impugned assessment years 2011-12 and 2012-13 respectively , vide common orders dated 03-03-2017 in SA no. 109 & 110/Mum/2017 for assessment years 2011-12 and 2012-13 respectively for a period of 180 days (one hundred and eighty days ) from the date of order or disposal of appeal whichever is earlier.
2. The Tribunal while granting stay of demand of tax and interest for AYs 2011-12 and 2012-13, vide common stay order dated 3rd March, 2017 , has recorded a finding that the cumulative demand of Rs. 7,98,14,610/- was outstanding against the assessee for both these years and out of which an amount of Rs. 4,54,98,099/- stood already paid. This fact is further confirmed by The Income Tax Officer-15(1)(3), Mumbai vide letter bearing number ITO-15(1)(3)/stay of demand/2016- 17 dated 01-03-2017. It was also noted by the tribunal that assessee has contended that the tax demand is mainly w.r.t. transfer pricing adjustments. The tribunal also granted early 3 SA No. 384 & 385 /Mum/2017 hearing of the matter on 11-04-2017 . It was also noted by the tribunal that in case the assessee seeks adjournment without any cogent reasons, the stay shall stand vacated and the case shall be fixed for hearing in normal course. While passing the stay orders dated 03-03-2017, it was made clear by the tribunal that the grant of stay shall have no bearing on the merits of the case.
3. Now, the assessee is before the tribunal with these two stay applications for seeking extension of stay for both the years i.e. AYs 2011-12 and 2012-13. The learned counsel for the assessee submitted date sheet for the both the years which is part of stay applications and submitted that the assessee has not sought any adjournment during the intervening period from the grant of the earlier stay on 03-03-2017 till date, and it was stated that said details of hearing taking place in the intervening period are placed in the stay applications which can be verified from the records. It was submitted that when the hearing started on these appeals before the tribunal, it transpired that the Revenue has also filed cross appeal for AY 4 SA No. 384 & 385 /Mum/2017 2011-12 with ITAT, Pune Benches and an application for transfer of appeal from ITAT, Pune to ITAT, Mumbai is pending. Complete date sheets of hearing since the grant of stay on 03-03-2017 till date is placed on record in the stay applications filed with tribunal. Thus, it is stated that the assessee is not at fault and in-fact it is Revenue which sought adjournments on the grounds that cross appeal filed by Revenue for AY 2011-12 needs to be transferred from ITAT, Pune to ITAT, Mumbai to be heard together.
4. The learned DR objected to extension of stay of demand of outstanding tax and interest but fairly admitted the factual matrix as detailed in stay petition as also what was stated by learned counsel for the assessee during the course of hearing, to be correct position on facts. The learned DR submitted that Revenue has already filed request before ITAT,Pune for transferring the revenue appeal for AY 2011-12 to ITAT, Mumbai. The letter dated 17-08-2017 written by Principal Commissioner of Income-tax -1, Mumbai is placed on the file. 5 SA No. 384 & 385 /Mum/2017
5. After hearing both the parties, we are of the considered view that the assessee has duly complied with the terms of stay granted by the tribunal earlier vide orders in S.A no. 109/Mum/2017 arising out of 2132/Mum/2016 for assessment year 2011-12 and SA no. 110/Mum/2017 arising out of ITA no. 1226/Mum/2017 for assessment year 2012-13 respectively, vide common orders dated 03-03-2017. We have observed that the assessee has not sought any adjournment for the assessment year 2011-12 and 2012-13 when the appeal came up for hearing before the Bench during the intervening period from the date of grant of stay on 03-03- 2017 by tribunal till as of now. It is also observed that the cumulative demand of Rs. 7,98,14,610/- was outstanding against the assessee for both these years and out of which an amount of Rs. 4,54,98,099/- stood already paid. This fact is further confirmed by The Income Tax Officer-15(1)(3), Mumbai vide letter bearing number ITO-15(1)(3)/stay of demand/2016- 17 dated 01-03-2017. Thus, keeping in view factual matrix of the stay petitions, we are inclined to extend the stay for both the assessment years 2011-12 and 2012-13 of the outstanding 6 SA No. 384 & 385 /Mum/2017 demand of tax and interest for a period of 180 days(one hundred and eighty days) , or till the disposal of appeal whichever is earlier. The assessee shall not seek any adjournment except on cogent grounds in exceptional circumstances. In case the assessee seeks adjournment without any cogent reasons, the stay shall stand vacated. We would clarify that we have not commented on the merits of the impugned appeals. The Revenue is directed to expedite the transfer of cross appeals of the Revenue from ITAT, Pune to ITAT, Mumbai so that both Assessee's appeal and Revenue appeal can be consolidated and heard together.
6. In the result , both the stay petitions fixed before the tribunal for AY 2011-12 and 2012-13 are allowed subject to directions given by us as above.
Order pronounced in the open court on 01st September 2017 in the presence of both the parties.
Sd/- Sd/-
(C N PRASAD) (RAMIT KOCHAR)
JUDICIAL MEMBER ACCOUNTANT MEMBER
7 SA No. 384 & 385 /Mum/2017
Mumbai,01-09-2017.
copy to...
1. The appellant
2. The Respondent
3. The CIT(A) - Concerned, Mumbai
4. The CIT- Concerned, Mumbai
5. The DR Bench, E
6. Master File
// Tue copy//
BY ORDER
DY/ASSTT. REGISTRAR
ITAT, MUMBAI