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2022 (7) TMI 1160
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....s filed the present writ petition impugning the order dated 2nd June, 2022 passed by CIT (IT), Delhi-3. The petitioner further seeks a direction to the respondents for granting complete and unconditional stay against the demand of INR 42,40,72,259/- arising out of the order dated 8th December, 2021 for relevant assessment year 2016-17 issued by respondent No. 2 under Section 201(1)/201(1A) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act'), till the disposal of the appeal currently pending before CIT(Appeals) and to not treat the petitioner as an assessee in default. The petitioner also seeks a direction to the CIT (A) to dispose of the petitioner's appeal within eight (8) weeks from the order of this Court. 2. Learned co....
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....the petitioner states that the amended Protocol of India-China DTAA which was entered into on 5th June, 2019 and made applicable from 1st April, 2021 makes it further clear that CDB was and remains a 100% Government owned entity. He further submits that the ownership of CDB before and after the amendment of the Protocol has not changed and the CDB is therefore, eligible to get exemption under the India-China DTAA. He has also drawn our attention to the Annual Report of the CDB for the year 2020 in support of his contention that the shareholding of the CDB remains unchanged and stands as it did in assessment year 2016-17. 5. Learned counsel for the petitioner states as is evident from the record its application seeking stay of the demand ....
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....the CDB vesting in the Government of China despite the documents evidencing ownership of CDB being placed on record. He states that the respondent has failed to adjudicate the prima facie case on ownership of CDB before rejecting the application. He, further, submits that while deciding the stay application, the respondent has failed to consider the plea of financial hardship faced by the petitioner. In this regard he placed reliance upon the Income Tax Return (ITR) of the petitioner for the Assessment Year 2021-2022 as well as the extracts of financial statements for the year ending 31st March, 2021. He submitted that the petitioner has reported tax losses and unabsorbed depreciation of INR 34,706.78 crores as on 31st March, 2021 and he re....
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.... conditions of the CBDT OM No. F. No. 404/72/93/-ITCC dated 29^th February, 2016 are not attracted in the facts of this case. With respect to the amended protocol, he submits that the said amended protocol is prospective and will be applicable from 1st April, 2020 which fact is not disputed by the learned counsel for the petitioner. The respondent contends that the facts of the present case will be determined with respect to the un-amended protocol. 9. With respect to the Annual Reports of the CDB, the learned counsel contends that as is evident from the Annual Report of the CDB, 61.87% of the shareholding is held by two companies. He contends that a company owned by a state is not a state and therefore the provisions of DTAA were not at....
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....er. 12. In this regard, the judgment of the Hon'ble Delhi High Court in GE Capital Mauritius Overseas Investments v. Deputy Commissioner of Income Tax and Another reported in 2021 SCC OnLine Del 2784 has observed as under:- "13. The counsels were heard on 23rd September, 2020, 9^th October, 2020 and 4th December, 2020, when orders were reserved. The contentions of the counsels are on two aspects. Firstly, on the timing of the order under Section 241A of the Act and secondly qua the reasons stated in the order under Section 241A aforesaid, with: ... E. the senior counsel for the petitioner in sur-sur-rejoinder contending that the counsel for the respondents has not furnished any explanation whatsoever for the de....
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....wing to the determination of tax liability being not in the domain of this Court, save under Section 260A, but in the domain of the statutory scheme under the Income Tax Act, this Court in writ jurisdiction while entertaining a challenge to an order under Section 241A of the Act, will ordinarily not enter into the correctness of reasons given for holding that the assessee may be ultimately found liable for tax. The Courts, when in exercise of powers of attachment before judgment, go into the question of prima facie merits of the claim of the party seeking attachment before judgment, are empowered to do so because the ultimate decision in the said respect also rests in the Court. However the Court does not have jurisdiction qua the determina....