Income Tax Appellate Tribunal - Mumbai
Ebay Singapore Services Pvt. Ltd., ... vs Dcit (It) 2(2)(1), Mumbai on 3 October, 2022
SA No. 122/Mum/2022 In ITA No. 2378/Mum/2022 Assessment year: 2019-20 Page 1 of 3 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI 'I' BENCH, MUMBAI [Coram: Pramod Kumar (Vice President), and Aby T. Varkey (Judicial Member)] SA No. 122/Mum/2022 In ITA No. 2378/Mum/2022 Assessment year: 2019-20 eBay Singapore Services Pvt. Ltd. ................................Appellant 1 Temasek Avenue, #14-01 Millenia Tower, Singapore 039192 [PAN: AAECE0650P] Vs. Deputy Commissioner of Income Tax (IT) 2(2)(1) Mumbai ..............................Respondent Appearances by:
Porus Kaka along with Manish Kant, for the applicant Chetan M. Kacha, for the respondent Date of concluding the hearing : 30/09/2022 Date of pronouncing the order : 03/10/2022 O R D E R Per Pramod Kumar VP
1. By way of this stay application, the assessee applicant seeks a stay on tax and interest demands, raised as a result of assessment order under section 143(3) r.w.s. 144C of the Income Tax Act 1961, for the assessment year 2019-20, aggregating to Rs. 1031,46,82,967/- impugned in appeal before us.
2. When this stay petition came up for hearing, it was noticed that the Assessing Officer has, vide letter dated 21st September 2022 disposing of the assessee's stay petition before him, directed the assessee to pay "the requisite taxed, as per Board's instruction 1914, being 20% of outstanding demand as per notice under section 156 of the Income Tax Act, immediately on or before 27th September 2022, in case you are in appeal, and also file a proof with respect to filing of appeal before the Hon'ble ITAT".
3. We put it to the parties that when Assessing Officer himself accepts the position that in terms of the Board's instruction, the assessee is required to pay 20% of the demand, and, by SA No. 122/Mum/2022 In ITA No. 2378/Mum/2022 Assessment year: 2019-20 Page 2 of 3 implication, the balance of the demand is stayed by the Assessing Officer, the computation of 20%, has to be with respect to disputed demand, or not with respect to outstanding demand.
Learned counsel emphatically submits that the basis of such computation can only be disputed demand. Learned Senior counsel for the assessee points out that the assessee has already paid Rs. 261.37 crores, out of the disputed tax liability, and thus more than 20% of the disputed tax liability has been paid by the assessee. It is learned senior counsel's submission that in view of the fact of this assessee having paid more than 20% of the disputed demand, the Assessing Officer ought to have stayed the balance disputed demands. Learned Senior counsel, nevertheless, argues at length pointing out prima facie merits of the case, the balance of convenience and sufficient Indian assets of the company to safeguards legitimate interests of the assessee. Learned Departmental Representative, on the other hand, submits that the matter may be remitted to the file of the Assessing Officer for proper adjudication on the stay petition. Learned Senior counsel opposes this prayer and submits will be served by asking the Assessing Officer to take a fresh call on the stay petition, and it is only a matter a time before the assessee is back in the Tribunal for the same purposes of seeking this stay.
4. We are of the considered view that once the Assessing Officer takes a view that in terms of the CBDT instructions, 20% of demand is to be paid by the assessee and the balance demand can, by implication, be stayed during the pendency of the first appeal, such a computation of 20% has to be with respect to total disputed demand, and not with respect to the outstanding demand specified under section 156. We, therefore, deem it fit and proper to remit the matter to the file of the Assessing Officer, for the limited purposes of verification whether 20% of the disputed demand is paid, and if so, pass an appropriate order granting the stay to the assessee on such conditions as deemed appropriate. However, if for whatever reasons, the Assessing Officer passes an order, on the stay petition, which is adverse to the assessee, the Assessing Officer shall not take any coercive action against the assessee for two weeks from the service of such order, so as not to pre-empt the remedial measures that the assessee may seek to pursue against the same. In the meantime, with the consent of the parties, the related appeal is fixed for hearing on 16th November 2022. The parties are directed to ensure that the necessary paper books etc. are filed in time so as to ensure expeditious disposal of this appeal on the scheduled date of hearing.
5. In the result stay application is allowed for statistical purposes, in the terms indicated above. Pronounced in the open court today on the 03rd day of October 2022.
Sd/- Sd/- Aby T. Varkey Pramod Kumar (Judicial Member) (Vice President) Mumbai, dated the 03 rd day of October, 2022 SA No. 122/Mum/2022 In ITA No. 2378/Mum/2022 Assessment year: 2019-20 Page 3 of 3 Copies to: (1) The Appellant (2) The respondent (3) CIT (4) CIT(A) (5) DR (6) Guard File By order etc True Copy Assistant Registrar/ Sr PS Income Tax Appellate Tribunal Mumbai benches, Mumbai