2020 (4) TMI 439

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....y of penalty demanded relating to AYs. 2007-08 to 2010-11. 2. By these Stay Applications dated 06.02.2020, the assessee seeks stay of outstanding demand of Rs. 8,18,03,174/- in aggregate for four assessment years arising from imposition of penalty. 3. In support of petition for stay, the learned Senior Counsel for the assessee at the outset referred to tabulated statement presented before the Joint Commissioner of Income Tax seeking stay which is reproduced hereunder: AY Rectified penalty demand Demand paid (20% of demand) Outstanding demand (80% of demand) Proposed refund adjustment Balance Penalty demand 2007-08 90,23,333 18,00,000 72,23,333 25,67,749 46,55,584 2008-09 2,94,36,200 58,00,0....

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....case of Instrumentarium Corporation vs. ADIT ITA No. 1548 and 1549/Kol/2009. The Special bench decided the issue of 'base erosion' against the tax payer. The Ahmedabad Tribunal has applied the principles rendered by the special bench and adjudicated the issue against the assessee in the quantum proceedings. The matter has been carried before the Hon'ble High Court by the assessee herein and the High Court was pleased to admit the appeal of the assessee in quantum proceedings vide order dated 03.04.2018 R/Tax Appeal No. 448 of 2017 & Ors. The learned Senior Counsel, in the circumstances, pointed out that the issue is apparently highly debatable and the matter was initially referred to the Special Bench to address the debate and now admitted ....

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....siderable liability already discharged by the assessee, we are of the view that mitigating circumstances exist in the present case for stay of outstanding demand to the extent of Rs. 5,27,23,794/-. The AO shall be entitled to adjust the refund of excess tax claimed to be under the control of the department to the tune of Rs. 2,90,79,380/-. 8. Having regard to the facts noted above towards partial stay of penalty as well as debatable aspect involved in the present case, we are inclined to entertain the stay applications and exercise our discretion in favour of the assessee for stay of recovery of balance outstanding of Rs. 5,27,23,794/- tabulated above for a period of six months or till the disposal of the appeal of the assessee by the Tr....