2025 (10) TMI 775 - HC - Income Tax

Section 68 addition set aside as prima facie duplicative tax; stay on Rs.272.20 crore demand pending appeal

HC held the addition under section 68 prima facie unsustainable as it duplicated tax on amounts already offered as business income and ignored documents ... Addition u/s 68 - unexplained credit - Rejection of Stay of demand - HELD THAT:- We find force in the argument of the the Petitioner that the addition made u/s 68 is prima facie unsustainable as the entire advisory fees earned from KCIML was already offered to tax as business income and that taxing the same amount u/s 68 without its reduction from the head “Profit and Gains from Business and Profession”, prima facie amounts to double taxation, which is entirely unsustainable based on well settled principles of law. Assessment order has grossly failed to consider/deal with the Petitioner’s fundamental argument that the addition under Section 68 was a double addition. This apart, whilst making the addition under Section 68, at least prima facie, the Assessing Officer ignored all supporting documents which could establish the identity, creditworthiness and genuineness of KCIML. Hence, we are of the opinion that the Petitioner had made out a strong prima facie case. Rejection of the Petitioner’s stay Application - As it was rejected by simply relying on the CBDT’s instruction dated 31st July 2017. It is well settled that CBDT's Office Memorandums/Instructions by which assessing officers have been directed to grant stay of the disputed demand on payment of 20% does not fetter the power of the Assessing Officer to grant stay on payment of amounts lesser than 20% and they must deal with the prima facie merits and give reasons for rejection of the stay Application. Since, prima facie, we feel that the Petitioner had made out a strong prima facie case, the Petitioner’s case merits a stay on the recovery of the entire demand for A.Y.2023-24. Recovery of the demand would cause tremendous injustice and severe hardship to the Petitioner. Hence, the following order:- (i) The CIT (Appeals) is directed to dispose of the Appeal of the Petitioner for A.Y. 2023-24 in accordance with law, as expeditiously as possible and preferably within a period of 6 months from the date of this order. (ii) Until this Appeal is disposed of, and for a period of 4 weeks thereafter, the Revenue shall not recover the demand of Rs. 272,20,53,053/- plus additional interest, if any, arising pursuant to the Assessment Order dated 24th March 2025 for A.Y.2023-24. (iii) In view of the fact that the demand is stayed by us, no further proceedings shall be taken against the Petitioner in respect of the addition made in the Assessment Order dated 24th March 2025 until disposal of the aforesaid Appeal and for a period of 4 weeks thereafter. We make it clear that all observations made in this order are only prima facie and shall not influence the CIT (A) whilst deciding the Appeal filed by the Petitioner. That Appeal shall be decided on merits and in accordance with law uninfluenced by any observations made herein. All contentions of both parties are expressly kept open to be agitated before the CIT (Appeals) when it hears the Appeal of the Petitioner. ISSUES PRESENTED AND CONSIDERED 1. Whether the Assessing Officer lawfully rejected an application for stay of recovery by mechanically insisting on payment of 20% of the disputed tax demand relying on a CBDT instruction, without dealing with the prima facie merits and relevant factors. 2. Whether an addition made under Section 68 treating advisory fees (already offered to tax as business income) as 'unexplained credit' is prima facie sustainable, particularly where the assessing officer did not reduce the amount from business income and did not adequately consider documentary evidence establishing identity, genuineness and creditworthiness of the payer. 3. Whether the assessing officer complied with the judicially prescribed parameters (as articulated in precedents) that must guide disposal of stay applications pending first appeal, including consideration of balance of convenience, hardship, and comparative incomes. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Validity of mechanical requirement of 20% deposit for stay Legal framework: Section 220(6) read with administrative instructions/CBDT circulars regulate the grant of stay of recovery pending appeal; assessing officer exercises discretion in granting stay subject to conditions. Precedent treatment: The Court follows authority holding that administrative instructions cannot fetter Assessing Officer's discretion and that the officer must consider prima facie merits and give reasons for rejection of stay; mechanical application of a fixed deposit percentage is impermissible. Interpretation and reasoning: The assessing officer rejected the stay application solely on the basis that 20% of the disputed demand must be deposited as per the CBDT instruction. The order contained no reasoned consideration of the petitioner's prima facie contentions, balance of convenience, or potential hardship. The Court emphasized that the Circular/Instruction does not preclude granting stay on lesser deposit and that the Assessing Officer must act as a quasi-judicial authority, weighing revenue protection against prejudice to the assessee. Ratio vs. Obiter: Ratio - administrative instructions cannot be applied mechanically to oust judicial discretion; assessing officers must consider merits and give reasons when denying unconditional stay. Obiter - suggestions on proportional reduction of deposit in other cases as a discretionary remedy. Conclusion: The Assessing Officer's rejection of the stay application by an unelaborated reliance on the 20% requirement was unlawful; Assessing Officer should have considered prima facie merits and given reasons for refusal. Issue 2 - Prima facie validity of addition under Section 68 where same receipts were offered as business income Legal framework: Section 68 permits additions if credits are unexplained; however, well-settled principles prevent double taxation - an amount already offered and taxed under business income should not be again treated as unexplained credit without taking it out from business income or rendering reasoned findings. Precedent treatment: The Court applied established principles that additions under Section 68 cannot be made mechanically where the receipts were accounted for and taxed as business income; assessing officer must confront and decide the specific contention of double addition and examine documentary evidence of identity/genuineness/creditworthiness. Interpretation and reasoning: The assessment order treated the full advisory fee as unexplained credit while leaving it also in the head of business income, without addressing the petitioner's primary objection that this would result in double taxation. The assessing officer additionally failed, at least prima facie, to engage with or accept supporting documents demonstrating identity and genuineness of the foreign payer. The Court found these omissions fatal at the prima facie stage, supporting the view that the petitioner had a strong prima facie case against the Section 68 addition. Ratio vs. Obiter: Ratio - where receipts are already offered as business income, an assessing officer cannot, without reasoned findings, treat the same receipts as unexplained credit under Section 68 and thus create a double addition. Obiter - observations on evidentiary sufficiency and the need to assess identity/creditworthiness in cross-border advisory arrangements. Conclusion: The addition under Section 68 is prima facie unsustainable because of (a) potential double taxation by not reducing the business income head, and (b) failure to consider documentary evidence proving identity and genuineness of the foreign payer. Issue 3 - Applicability of judicial parameters in stay decisions and compliance with KEC/UTI principles Legal framework: Judicial authorities have laid down parameters that stay applications pending appeal must be decided after hearing, considering hardship, prima facie merits, any departure from earlier years' views, proportionality, and that coercive action should be taken only for reasons that are briefly recorded. Precedent treatment: The Court applied and followed the principles from precedents requiring assessing officers to (i) consider the merits of the case, (ii) weigh returned income versus assessed income, (iii) consider practical hardship, and (iv) act as a quasi-judicial authority balancing Revenue interest and taxpayer hardship. Interpretation and reasoning: The impugned order did not engage the petitioner's arguments under these parameters. The assessing officer failed to consider the significant disparity between returned income and assessed income, did not address the petitioner's claim of hardship and possible irreversible prejudice from recovery, and did not record reasons justifying coercive recovery or conditioned stay. The Court reiterated that stay should not be refused by rote; instead, the Assessing Officer must apply the KEC/UTI guidelines. Ratio vs. Obiter: Ratio - assessing officers must apply the established stay parameters and provide reasoned orders; failure to do so renders a stay-refusal vulnerable to judicial interference. Obiter - emphasis on procedural safeguards (notice before attachment, reasonable time to seek higher remedies) as good practice. Conclusion: The assessing officer's decision was procedurally and legally deficient for non-compliance with judicially prescribed parameters and for failing to give considered reasons for refusal of unconditional stay. Relief and Interim Conclusions Because the petitioner established a strong prima facie case on the Section 68 issue, demonstrated balance of convenience in its favour, and shown that recovery would cause serious hardship, the Court stayed recovery of the entire demand pending disposal of the first appeal and for a limited period thereafter, while directing the appellate authority to decide the appeal expeditiously. Observations in the order are prima facie and shall not influence the first appellate authority's decision on merits.