MARUTI SUZUKI INDIA LTD Vs. ADDITIONAL COMMR. OF INCOME TAX AND ANR
February, 07th 2013
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 31.01.2013
+ W.P.(C) 552/2013
MARUTI SUZUKI INDIA LTD ..... Petitioner
ADDITIONAL COMMR. OF INCOME TAX
AND ANR ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr S Ganesh, Sr. Adv. with Mr S
Sukumar, Mr Anand Sukumar and Mr Bhupesh
Kumar Pathak, Advs.
For the Respondent : Mr Kamal Sawhney, sr. standing counsel
with Mr Shashank Singh, Adv.
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE R.V.EASWAR
BADAR DURREZ AHMED, J (ORAL)
Exemption is allowed subject to all just exceptions.
The application is disposed of.
W.P.(C) 552/2013 & CM 1042/2013 (stay)
This writ petition is directed against the order dated 11.01.2013 passed
by the Income Tax Appellate Tribunal in Stay No.310/Del/2012 in ITA
No.6021/Del/2012 pertaining to the assessment year 2008-09.
WP(C)552 /2013 Page 1 of 6
2. The petitioner sought stay of demand of `373.68 crores. The assessing
officer acceded to the request of the assessee only to this extent that no
coercive measures would be taken in respect of `150.92 crores which according
to the learned counsel for the petitioner was on the basis of covered issues. Mr
Ganesh, the learned senior counsel appearing for the petitioner submitted that a
sum of `166.77 crores, i.e., about 75% of the amount of `222.76 crores (i.e.,
`373.68 crores `150.92 crores) have already been adjusted by the revenue as
against refund due to the petitioner. He submitted that the petitioner had refund
claims of `166.77 crores out of which an amount of `148 crores had admittedly
been adjusted and the balance amount of 18.77 crores is under process. Mr
Ganesh submitted that if the amount of `148 crores is already adjusted and the
balance of `18.75 crores under process are taken into account then the
remaining amount would be only `56 crores (approximately) (`222.76 crores
3. In the light of the above facts Mr Ganesh submitted that the Tribunal has
virtually rejected the stay application of the petitioner in as much as it has
directed that the assessee ought to pay a sum of `56 crores by 31.01.2013 and
thereafter the assessee shall pay `10 crores per month by the last date of the
month till the demand of `222.76 crores was completely paid out by way of
adjustment or the instalment made by the assessee.
WP(C)552 /2013 Page 2 of 6
4. Mr Ganesh submitted that the Tribunal did not examine whether the
petitioner had a prima facie case or not and by giving the directions mentioned
above it has virtually rejected the stay application.
5. In respect of the assessment years 2005-06 and 2007-08, where similar
issues have been raised, the Tribunal had required the petitioner to make a
deposit of only `125 crores (including adjustment of refund) out of the total
demand of `547.06 crores. In other words, the Tribunal had stayed the demand
to the extent of approximately 78% by requiring the petitioner to deposit only
about 22% of the demand. In contrast, in the present year i.e. the assessment
year 2008-09 the total demand is of `373.68 crores out of which approximately
an amount of `150 crores is on account of covered issues for which the
assessing officer himself had ordered that no coercive measures for recovery of
the same would be taken although he had made adjustment to the said amount.
The balance amount would be `222.76 crores. A further sum of `166.75 crores
is to be reduced on account of refunds, both granted and under process. We are
thus left with an amount of `56 crores which is the very amount which the
Tribunal has required the assessee to deposit by 31.1.2013.
6. It is thus the case of the petitioner that while in the previous year
when similar issues were raised only 22% of the entire duty demanded
was required to be deposited while the balance was stayed, in the present
year the Tribunal has been unduly harsh on the petitioner by requiring it
WP(C)552 /2013 Page 3 of 6
to deposit/adjust 60% of the tax demanded which also includes a sum of
`150 crores which pertain to covered issues.
7. Consequently, Mr Ganesh submitted that the Tribunal has virtually
not granted any stay to the petitioner whereas in the previous year it had
done so. He also raised the issue that the advertisement; marketing and
publicity expenses (AMP) which were to be considered by the Transfer
Pricing Officer was an issue in the previous year as also in the current
year and he also referred to a decision of the Special Bench of the
Tribunal where certain guidelines have been laid down and the matter has
been remanded to the TPO to follow those guidelines. According to Mr
Ganesh a similar route would probably have to be adopted in the present
case also and if that were to be so the current demand would be reduced
by a sum of about `100 crores and therefore according to him the
petitioner would have actually overpaid.
8. The learned counsel for the revenue opposed the writ petition and
supported the order passed by the Tribunal and submitted that the
Tribunal has already granted a stay in so far as the amount of `150 crores
is concerned with regard to the covered issues. He submitted that the
Tribunal has modified the order of the assessing officer to the extent that
WP(C)552 /2013 Page 4 of 6
while the assessing officer had merely provided that no coercive
measures for recovery be undertaken but the amounts could be recovered
by way of adjusting refunds, the Tribunal on the other hand has directed
that no such adjustment could be made as against the covered issues.
9. Since the Tribunal in the earlier years on the very same issue has
conclusively indicated in the order dated 03.02.2012 that the petitioner
had a prima facie case, we feel that the Tribunal in the present case ought
to have also held accordingly. If that were to be the position, then the
Tribunal ought not to have deviated from the practice adopted in the
previous year by requiring the petitioner to make a deposit of the said
sum of `56 crores in addition to the adjustment of `166 crores.
10. Mr Ganesh has also pointed out that the appeal is fixed for hearing
on 05.02.2013 and that he undertakes not to take any adjournment in the
matter and it is only a matter of few days before the issue would be
decided by the Tribunal. Considering the aforesaid arguments we are of
the view that the Tribunal's order cannot stand and therefore we direct
that no further recoveries be made against the petitioner till the disposal
of the appeal by the Tribunal. We make it clear that we have expressed
WP(C)552 /2013 Page 5 of 6
no opinion on the applicability of the order of the Special Bench (supra)
to the petitioner's case on merits which is for the Tribunal to decide.
The writ petition stands disposed of.
BADAR DURREZ AHMED, J
JANUARY 31, 2013
WP(C)552 /2013 Page 6 of 6