2015 (10) TMI 1708

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....ents passed u/s 153A read with sec.143(3) of the Income-tax Act,1961 [hereinafter referred to as 'the Act' for short] for the assessment years 2005-06 to 2007-08 and 2010-11 to 2011-12 respectively. 2. We have heard the learned AR of the assessee as well as the ld. DR and considered the relevant material on record. In the case of Shri Dinesh Kumar Singhi, stay petitions pertain to the outstanding demands for the assessment years 2005-06 to 2007- 08, 2010-11 and 2011-12 in respect of disallowance of claim u/s 10B of the Act. The learned AR of the assessee has pointed out that the Assessing Officer (AO) while completing the regular assessment for the assessment year 2005-06 and 2006-07 allowed the claim of the assessee-Shri Dinesh Kumar Sing....

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....f MISC Berhad vs. Asst. Director of Income-tax (International Taxation) reported in 150 ITD 213. Learned AR of the assessee has further submitted that even otherwise, AO has denied the claim of deduction u/s 10B on the basis of change of opinion by holding that the assessee did not set up an EOU uptill the years under consideration whereas this finding of the AO is contrary to the fact that the assessee had already set up an EOU and exported the goods. The learned AR of the assessee has pointed out that the AO has given much emphasis on the point that the assessee applied for private bonded warehouse in the year 2006 and therefore, when the request of the assessee for private bonded warehouse was pending for consideration, assessee did not ....

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.... has been raised by the AO at Rs. 25,92,99,823/- inclusive of the interest u/ss.234A to 234D. He has submitted that the assessee has already paid a sum of Rs. 14,46,84,105/- which is about 56% of the total demand and 75% of the tax demand excluding interest. Thus, the learned AR of the assessee has submitted that the assessee has already made payment of the substantive tax demanded by the AO arising from the denial of deduction u/s 10B. Since denial of claim u/s 10B is based on the change of opinion without any tangible material found during search and seizure proceedings, therefore, the assessee has made out a prima facie case for stay of the outstanding balance demand till the disposal of the appeal. 4. On the other hand, learned Departm....

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....d assessment. Once the AO has allowed the claim of the assessee u/s 10B in scrutiny assessment and the said assessment has not been disturbed then, the assessee has made out a good prima facie case on merit. We further note that even the question of establishing 100% EOU is a highly debatable issue in the facts of the case of the assessee, because the AO has not given a finding that there was no unit in existence but the finding of the AO is based more on the fact that the assessee's request for private bonded warehouse is still pending and was not approved by the authorities till the end of the previous years relevant to these assessment years. Since this is a complexed issue of examination of the fact as well as lawwhether the assessee ha....