2014 (11) TMI 488

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....Revenue, all the submissions need not be referred to, nor the factual contention placed before this Court in the form of affidavit and oral submissions be narrated in toto for disposal of this writ petition. 3. The 1st respondent passed an order of assessment under Section 143(3) of the Income Tax Act dated 28.03.2014 for the assessment year 2011-2012 on the following terms: Add: (1) Addition on account of disallowance u/s 40(a)(ia) of Income Tax Act on disallowance of payment made to M/s.Jaldhi Overseas Pte.Ltd. without deducting tax at source Rs.51,56,53,993/- (2) Addition on account of disallownace of interest Rs.76,57,574/- (3) Discrepancy/short reflection of gross receipts vis-a-vis 26AS credits etc Rs.71,83,75,398....

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....on for interim relief is to be considered. In fact, the CBDT has issued instructions on 02.12.1993 vide Instruction No.1914, wherein guidelines have been issued for staying demand. One of the illustrative situations pointed out in the Circular is that if the demand in dispute relates to issues that have been decided in assessee's favour by an appellate authority or Court earlier, then that would have been the sufficient reason to stay the recovery of demand. 6. Bearing the above principles in mind, if the impugned order is perused, it is seen that observations were made under the following four heads: i) Disallowance made to M/s.Jaldhi Overseas Pvt., Ltd., - Rs. 51,56,53,993/-. ii) Disallowance of interest on amount borrowed an....

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....g that the transaction between the assessee and non-resident company would be taxable only in Singapore and not in India. Accordingly, the Hon'ble Division Bench allowed the writ petition insofar it related to disallownace under Section 49(a)(i) for alleged non-deduction of tax at source in terms of Section 195(1) of the Income Tax Act. The said order pertained to the assessment year 2010-2011. iii) Subsequently, M.P.No.1 of 2014 was filed by the petitioner, seeking for certain correction in the order passed by the Hon'ble Division Bench dated 05.02.2014. The miscellaneous petition was ordered by an order dated 20.06.2014. While disposing of the said petition, the Hon'ble Division Bench noticed that the order passed by the Ho....

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.... order dated 24.12.2012 accepted the submission made by the petitioner therein and deleted the disallowance. Against the said order of CIT(Appeals), an appeal has been preferred before the Income Tax Appellate Tribunal. It is stated that the said appeal is pending and  no interim order has been granted by the Tribunal in favour of the Revenue. ii) Under such circumstances, this Court is of the view that with regard to the 2nd head, the petitioner has established prima facie case. Though it is stated by the learned Standing Counsel for the Revenue that it is for the assessment year 2009-2010, yet legal principles, which were adopted by CIT (Appeals) as on date holds good and it is for the appellate authority in the present appeal to ....

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.... should dispassionately examine the stay petition to find out as to whether the petitioner is able to prove prima facie case for staying the demand passed by the Assessing Officer or the Officer in the same cadre. Therefore, the scheme of the Act reposes such duty on the Assessing Officer, while examining the stay petition, filed by the assessee requesting for stay of the demand till the appeal against the order of assessment is heard by the Commissioner of Income Tax (Appeals). iii) However, in the instant case, this principle has not been adhered to and the order is a non speaking order. Accordingly, the disallownace under this head (3rd head) is set aside and the matter is remanded back to the respondent for fresh consideration. [1....