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Nile Tech Ltd. Asset No. 8, 3rd Floor, Worldmark-2, Aerocity NH-8, New Delhi. vs. ACIT, Circle 18(2) New Delhi
December, 06th 2018
                  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




                                   2
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.









                                    3
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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