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M/s. Delta Air Lines, Inc C/o BMR & Asssociates LLP 36-B, Dr. R.K. Shirodkar Marg Parel, Mumbai 400012 Vs. DCIT (Intl. Taxation) - 2(1)(2) 1st Floor, Scindia House Ballard Estate, N.M. Road Mumbai 400038
January, 21st 2015
               IN THE INCOME TAX APPELLATE TRIBUNAL
                          "D" Bench, Mumbai

                 Before Shri D. Manmohan, Vice President
                and Shri R.C. Sharma, Accountant Member

                            SA No. 13/Mum/2015
                   (Arising out of ITA No. 143/Mum/2015)
                          (Assessment Year: 2011-12)

     M/s. Delta Air Lines, Inc           DCIT (Intl. Taxation) - 2(1)(2)
     C/o BMR & Asssociates LLP           1st Floor, Scindia House
                                     Vs.
     36-B, Dr. R.K. Shirodkar Marg       Ballard Estate, N.M. Road
     Parel, Mumbai 400012                Mumbai 400038
                             PAN - AAACD4092M
                Applicant                         Respondent

                    Applicant by:      Shri Ajit Jain &
                                       Miss Radha Thakkar
                    Respondent by:     Shri Neil Philip

                    Date of Hearing:       16.01.2015
                    Date of Pronouncement: 16.01.2015

                                    ORDER

Per D. Manmohan, V.P.

     By this application the assessee-company seeks stay of collection of
outstanding demand of `6,47,41,309/- pending disposal of the appeal and
also requested for posting the appeal on out of turn basis.

2.     The assessee is mainly engaged in the business of carriage of material,
documents and cartons as well as passengers on its own aircrafts or third
party aircrafts. According to the assessee the entire profit from its operations
in India are liable to be taxed in USA as per the provisions of Article 8 of
India-USA treaty. On the other hand, the case of the Revenue is that the
income is assessable in India. The learned Dispute Resolution Panel approved
the draft assessment order and thus the assessee preferred an appeal.

3.     At the time of hearing the learned counsel for the assessee submitted that
the facts and circumstances of the case are identical to the facts in assessee's
own case for AY 2010-11. Adverting our attention to page 92 of the paper book
the learned counsel submitted that this issue had come up before the ITAT in
assessee's own case for earlier year and the matter was heard and judgement
                                         2                     SA No. 13/Mum/2015
                                                              M/s. Delta Air Lines, Inc




awaited. Briefly narrating the facts, it was submitted that the assessee has a
strong prima facie case on merits and hence it is a fit case for granting stay of
collection of outstanding demand. It may be noticed that it is not a case that
assessee does not have sufficient funds to make the payment and non-granting
of stay would irretrievably affect the business of the assessee.

4.    On the other hand, the learned D.R. relied upon the order passed by
the DRP to submit that the Revenue has a strong prima facie case on merits
and it is not a fit case for granting stay of collection of outstanding demand.

5.    We have heard the rival submissions and carefully perused the record.
One of us (the learned Accountant Member) is a party to the appeal, filed by
the assessee pertaining to AY 2010-11, wherein the matter was argued at
length. Though the assessee had a strong prima facie case on merits but it
cannot be said that all the contentions of the assessee merits acceptance. It
is also not the case of the assessee that there is financial constraint. Having
regard to the overall circumstances we are of the view that the assessee is
entitled to conditional stay. As pronounced in the open court, we direct the
assessee to pay 50% of the tax demand (excluding interest component) in
two instalments, i.e. `1 crore to be paid on or before 31st January, 2015 and
the balance to be paid before 28th February, 2015 and with regard to the
balance outstanding demand the company should furnish surety to the
satisfaction of the AO. Registry is directed to post the appeal for final
hearing on 25.02.2015. Assessee shall not seek adjournment on the date
fixed for hearing unless sufficient reasons are stated which are agreeable to
the Bench concerned as otherwise the stay granted by the Bench stands
automatically vacated. Since it is announced in the open court, notice to the
parties is dispensed with.




6.    In the result, the stay application filed by the assessee is partly allowed.

Order pronounced in the open court on 16th January, 2015.

                Sd/-                                         Sd/-
           (R.C. Sharma)                               (D. Manmohan)
        Accountant Member                               Vice President

Mumbai, Dated: 16th January, 2015
                                       3                   SA No. 13/Mum/2015
                                                          M/s. Delta Air Lines, Inc

Copy to:

   1.   The   Appellant
   2.   The   Respondent
   3.   The   CIT(A) ­ DRP-1, Mumbai
   4.   The   CIT­ concerned
   5.   The   DR, "D" Bench, ITAT, Mumbai

                                                      By Order

//True Copy//
                                                   Assistant Registrar
                                           ITAT, Mumbai Benches, Mumbai
n.p.

 
 
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