INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "E": NEW DELHI
BEFORE
SHRI AMIT SHUKLA, JUDICIAL MEMBER
AND
SHRI L.P. SAHU, ACCOUNTANT MEMBER
Stay application No.898/DEL/2018
Arising out of ITA No.:- 7557/Del /2018
Assessment Year: 2014-15
Nile Tech Ltd. ACIT, Circle 18(2)
Asset No. 8, 3rd Floor, Worldmark-2, New Delhi
Aerocity NH-8, New Delhi. Vs. PAN AACCN3608E
Delhi, Pin 110 037
(Appellant) (Respondent)
Assessee by: Shri Anil Bhalla, CA
Department by : Shri S.S. Rana, CIT (DR)
Date of Hearing 05.12.2018
Date of 05.12.2018
pronouncement
ORDER
PER AMIT SHUKLA, J.M
By way of the aforesaid stay application, the applicant assessee
seeks for extension of stay of outstanding demand of Rs.
2,26,89,040/- arising out of addition made by the AO, by treating the
rental income shown by the assessee as `income from business and
profession' instead of `income from house property' as shown by the
assessee.
2. Before us, Ld. Counsel for the assessee Shri Anil Bhalla
submitted that asssessee has a prima facie good case for the reason
that, firstly, in the earlier years similar rental income has been
assessed as income from house property by the AO in the assessment
passed u/s 143(3) ; and secondly, now this issue stands covered by
the judgment of Hon'ble Supreme Court in the case of Raj Dadarkar &
Associates (2017) 397 ITR 592.
3. Apart from that, he submitted that out of total demand of Rs.
2,83,61,340/- assessee had already paid 20% which is Rs.
56,72,300/-. He further pointed out that a refund is due to the
assessee after giving appeal effect of appellate order passed in the
assessment year 2010-11 which is after interest, worked out at Rs.
99,09,959/-. He also drew our attention to the refund application filed
before the authorities below given at page 114 and also letter dated
28th November, 2018 given to the AO giving the detailed working of the
refund. He submitted that assessee has no objection if such refund is
adjusted against the outstanding disputed demand. He submitted that
looking to the prima facie merits of the case that huge refund is due to
the assessee, which assessee ready to adjust from the balance
outstanding and hence after the adjustment of refund, balance
demand could be stayed. Alternatively, he also prayed that the appeal
of the assessee should be heard on priority basis.
4. On the other hand, Ld. CIT(DR) opposed to the granting of the
stay and submitted that the facts of the each case has to be examined
while deciding the issue, as to whether the income derived by the
assessee their exploitation of commercial complex is to be assessed as
business income or income from house property. Accordingly, it can
not be said that issue stands squarely covered. He does not have any
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objection if the department can adjust for the refund after verifying the
working given by the assesee.
5. After considering the aforesaid submissions made by the parties
and on perusal of the relevant facts placed in the impugned stay
application, we find that the issue involved is mainly, whether the
rental income received from commercial complex is to be assessed as
"income from house property" or "business income". Now in the wake
of Hon'ble Supreme Court judgement and also various Tribunal
decisions, prime facie appears is that this issue, may go in favour of
the assessee, subject to hearing on facts. Accordingly, balance of
convenience is in favour of the assessee for grant of partial stay.
However, as pointed out by the Ld. Counsel, refund of Rs. 99 lakhs is
due to the assessee in the assessment year 2010-11 for which working
has been given before us. Accordingly, AO is directed to verify the
working ; and if such refund is available to the assessee, then same
should be adjusted against the disputed demand. After the said
adjustment, balance demand shall be stayed for the period of six
months or till the passing of the order whichever is earlier. We are also
granting early hearing in this matter; and accordingly, we direct the
registry to fix this matter for hearing on 15th January, 2019.
6. Further, it has been informed by the Ld. Counsel that
department has attached the bank account u/s 226(3) and the said
bank attachment should be revoked immediately. Since we have
already granted the stay of outstanding demand subject to adjustment
of refund, therefore, the attachment made by the AO on the bank
account of the assessee should be immediately lifted and same shall
be revoked with immediate effect.
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7. Order pronounced in the open court. Accordingly stay
application filed by the assessee is allowed in the manner indicated
above.
Order pronounced in the open court on 5th December, 2018.
sd/- sd/-
(L.P. SAHU) (AMIT SHUKLA)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 05/12/2018
Veena
Copy forwarded to
1. Applicant
2. Respondent
3. CIT
4. CIT (A)
5. DR:ITAT
ASSISTANT REGISTRAR
ITAT, New Delhi
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