TaxTMI 
TaxTMI 
2019 (9) TMI 1579
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....t to certain terms and conditions. It is evident, the stay granted to the assessee by the aforesaid order was extended from time-to-time and the last order passed by the Tribunal extending stay of recovery of outstanding demand for a period of six months was passed in S.A. no.23/ Mum./2019, on 8th February 2019. Before the expiry of the said stay order, though, the assessee had filed the present application seeking extension of stay, however, the said stay application could not be disposed off for some reason or other. In the meanwhile, the Revenue filed a miscellaneous application seeking vacation/variation of order dated 8th February 2019, passed in S.A. no.32/ Mum./2019. However, by the time the misc. application filed by the Revenue came up for hearing, the order dated 8" February 2019, had already expired. Therefore, the misc. application filed by the Revenue having become infructuous was dismissed by the Tribunal vide order dated 28th August 2019, in M.A. no. 447/Mum./2019. 3. In the aforesaid premises, when the present stay application came up for hearing, Shri Mahesh Shah, the learned Departmental Representative, raised a preliminary objection stating that the applicatio....
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....e the appeal. Thus, she submitted, the non-disposal of the appeal is not attributable to the assessee. She submitted, even the Revenue sought transfer of the present appeal to the Anmedabad Benches, which was rejected by the Hon'ble President, ITAT. Further she submitted, as early as on 31th July 2018, the Bench had directed the Revenue to intimate about the status of appeal pending before the Hon'ble Supreme Court and also to clarify its stand on the particular assessment year i.e., 2008-09 or 2011-12, it wants the addition on account of transfer of call option has to be made on substantive basis. She submitted, after lapse of considerable time, the learned Departmental Representative has filed letter dated 14th August 2019, clarifying the stand of the Revenue on the issue, wherein, the Revenue has again reiterated its stand that the addition on account of transfer of call option has to be made on substantive basis in the assessment year 2008-09. She submitted, in view of the aforesaid stand of the Revenue, the addition made on protective basis in the impugned assessment year cannot be subjected to recovery proceeding. She submitted, the Revenue cannot make the same addition i....
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.... Representative submitted, though, the Transfer Pricing Officer has made the addition on account of transfer of call option in the assessment year 2008-09 on substantive basis and it is still the case of the Revenue that it is taxable in the assessment year 2008-09, however, while deciding the issue in the impugned assessment year, the DRP has directed the Assessing Officer to make the addition on substantive basis. The learned Departmental Representative submitted, even in respect of couple of other additions made in the impugned assessment year also, such as, depreciation on goodwill and adjustment on account of ITeS, the assessee does not have a strong case on merit. Thus, he submitted, prima facie case and balance of convenience are more in favour of the Revenue than the assessee. The learned Departmental Representative submitted, even after exercise of call option in the impugned assessment year, the assessee has not offered the income to tax. He submitted, the amount accruing as income of the assessee has to be taxed either in assessment year 2008-09 or in assessment year 2011-12. Whereas, the assessee had not offered it to tax in any of these assessment years. Thus, he submi....
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.... fact that the Assessing Officer had made the subject addition on substantive basis in the assessment year 2008-09 and on protective basis in the impugned assessment year. Admittedly, while deciding the aforesaid issue in assessment year 2008-09, the Hon'ble Jurisdictional High Court.had unequivocally held that no transfer/assignment of call option had taken place during the year, hence, deleted the addition. Against the aforesaid decision of the Hon'ble Jurisdictional High Court, the Revenue has preferred Special Leave Petition before the Hon'ble Supreme Court which, though admitted, is still pending. It is relevant to observe, in response to query raised by the Bench to clarify Revenue's stand, the learned Departmental Representative has furnished letter dated 14th August 2019, clarifying the stand of the Revenue stating that the addition on account of call option has to be made on substantive basis in the assessment year 2008-09. Thus, the aforesaid facts clearly demonstrate that the Revenue intended to make the addition on protective basis in the impugned assessment year to safeguard its interest. Undisputedly, the issue relating to taxability of the amount in the a....