, " "
IN THE INCOME TAX APPELLATE TRIBUNAL "K" BENCH, MUMBAI
BEFORE S/SHRI B.R.BASKARAN (AM) AND SANJAY GARG, (JM)
.. , ,
Stay Application No.32/Mum/2015
arising out of
./ ITA No.752/Mum./2015
( / Assessment Year: 2010-11)
Tata Power Solar Systems / Dy.Commissioner of Income
Limited, Vs. Tax, Cir 8(3)91),
78, Electronics City, Hosur Aayakar Bhavan, M K Road,
Road, Bangalore-560-100 Mumbai-400020
( /Appellant) .. ( / Respondent)
. / . /PAN/GIR No. : AAACT4660J
/ Appellant by S/Shri Dhanesh Bafana with
Arpit Agrawal
/Respondent by Shri Jeetendra Kumar
/ Date of Hearing
: 13.2.2015
/Date of Pronouncement : 13.2.2015
/ O R D E R
Per B.R.BASKARAN, Accountant Member:
The assessee has filed this stay application seeking stay of
outstanding demand. The ld. counsel appearing for the assessee submitted
that the original demands raised by the assessee was reduced to
Rs.18,98,42,081/- consequent to rectification application filed before AO
on 28.1.2015. However, in the rectification order also there are certain
mistakes i.e. AO has not given MAT credit for AY 2008-09 amounting to
Rs. 4.97 crores. The ld. counsel submitted that the demand would further
SA No.32/M/2015
2
reduce to Rs.11.18 crores, if the AO allow deduction of MAT credit relevant
to AY-2008-09.
2. The ld. counsel for the assessee submitted that the assessee has got
prima facie good case on merit also. The ld. counsel submitted that the
addition pertaining to Transfer Pricing Adjustment made by the Transfer
Pricing Officer and confirmed by DRP. The ld. counsel submitted that the
TPO has taken one party M/s Surana Ventures Limited as one of the
comparables and according to the assessee the said party cannot be taken
as comparable case. He submitted that the leaving aside the above said
party, then arithmetic mean of the final set of the comparable which
worked out to 9.72%. The ld. counsel submitted that the assessee had
declared a fall margin of ± 5%. According to the ld. AR the difference
between the two falls is within 5%. Accordingly, he submitted that the
assessee got good chance for succeeding in the appeal filed by the
assessee. Accordingly, he prayed that the entire demand may be stayed.
3. On the contrary, the ld. DR submitted that prima facie a case
submitted by the assessee is not acceptable to the department. He further
submitted that the assessee has failed to show the financial position.
Accordingly, he submitted that the Stay Application should not be allowed.
4. In the rejoinder, the ld. AR furnished a copy of condensed balance
sheet dated 31.12.2014 and submitted that the assessee has incurred
huge losses during the year under consideration and net cash flow from
operations has resulted in a negative figures.
SA No.32/M/2015
3
5. We have heard the rival submissions and perused the record.
Admittedly, the submissions made with regard to the merits of the
additions, it can only be considered at the final hearing of the appeal. A
perusal of the financial statement furnished by the assessee would show
that the assessee is having comfortable financial position as on
31.12.2014. Even though it had incurred losses during that period.
Hence, conspectus of the matter, we are of the view, that the assessee
does not deserves for grant of absolute stay of the outstanding demands.
Accordingly, we direct the assessee to pay a sum of Rs.2 crores in two
installments viz the first installment should be paid on or before 28.2.2015
and the second installment shall be paid on or before 31.3.2015. Subject
to the payment of two installments, we grant stay of balance amount of
outstanding demand for a period of six months or till the disposal of the
appeal whichever period expires earlier. We are also of the view that this
appeal would be heard on out of turn basis. Accordingly, we direct the
registry to post this appeal for hearing on 16.4.2015. Since the date of
hearing is announced in the open court in the presence of both the
parties, the registry is directed not to send any formal notice of hearing to
the parties. We also caution the assessee that it should not seek any
adjournment, without a reasonable cause, on the date of hearing and if
adjournment is sought, the present stay order shall be subject to review
by the Regular Bench.
SA No.32/M/2015
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6. In the result, the stay application filed by the assessee is partly
allowed.
The above order was pronounced in the open court on 13th Feb
2015.
th
13 Feb 2015
sd sd
(SANJAY GARG/ ) (.. / B.R. BASKARAN)
/ JUDICIAL MEMBER / ACCOUNTANT MEMBER
th
Mumbai: 13 Feb,2015.
. ../ SRL , Sr. PS
/Copy of the Order forwarded to :
1. / The Appellant
2. / The Respondent.
3. () / The CIT(A)- concerned
4. / CIT concerned
5. , , /
DR, ITAT, Mumbai concerned
6. / Guard file.
/ BY ORDER,
true copy
(Asstt. Registrar)
, /ITAT, Mumbai
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