IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCHES: `Friday', NEW DELHI
BEFORE SHRI R.K.PANDA, ACCOUNTANT MEMBER
AND
SMT. BEENA A PILLAI, JUDICIAL MEMBER
S.A.No. 242/Del/2019
(Arising out of ITA No. 7386/Del/2018)
A.Y. 2014-15
M/s AJB Developers P Ltd. Dy.CIT, Circle 2(1)
Pinnacle Business Tower vs. C.R. bldg.
10th floor, Suraj Kund New Delhi 110 002
Faridabad 121 001
Haryana
PAN: AAFCA1721Q
(Appellant) (Respondent)
Applicant by Sh. SK Gupta, C.A.
Respondent by Ms. Aastha Lakshmi, Sr.D.R.
Date of Hearing 08/03/2019
Date of Pronouncement
13/03/2019
ORDER
PER BEENA A PILLAI, JUDICIAL MEMBER
Present Stay Application has been filed by assessee seeking
stay of outstanding demand of Rs.88,66,191/- inclusive of interest.
2. Ld.Counsel submitted that, assessee is a company engaged in
the business of builders, colonizers, estate developers, town
planners, architects, engineers, Electrical, Civil and Maintenance
contractors and infrastructure development. During year under
consideration it has been submitted that assessee filed its return of
S.A.No.242/Del/19
Arising out of ITA 7386/Del/18)
M/s AJB Developers P Ltd.
income declaring total income of Rs.73,140/-. However tax was paid
under section 115 JB of the Income Tax Act, 1961 (the Act) at book
profit of Rs.7,19,33,056/-. During assessment proceedings Ld. AO
observed that assessee claimed long term capital loss of
Rs.18,52,85,718/- on sale of land, instead of short term capital
gain as period of holding of capital asset was less than 36 months
from date of conversion of stock-in-trade to capital asset. Ld. AO
made addition of Rs. 7,22,29,231/-in hands of assessee on
account of short term capital gain. The other disallowances made
by Ld. AO was on account of expenditure debited to P&L account
pertaining to agricultural income and expenditure disallowed under
section 14 A read with rule 8D of the Act.
2.1. Ld.Counsel submitted that the said land was converted into
investment in financial year 2012-13 relevant to assessment year
2013-14 and therefore Ld. AO erred in making addition on account
of sale of land by treating it as short term capital gain. Ld. Counsel
submitted that this issue has been considered by various Tribunals
in favour of assessee. He submits that property sold was capital
asset and therefore claim of assessee must be allowed. He
submitted that assessee deposited 33% of demand, and bank
accounts are attached. It has been submitted that balance of
convenience lies in favour of assessee, and no harm will be caused
to revenue if stay of outstanding demand is granted and an early
hearing is given for this appeal.
2.2. Ld.Counsel has thus prayed for an unconditional stay to be
granted in this case.
2
S.A.No.242/Del/19
Arising out of ITA 7386/Del/18)
M/s AJB Developers P Ltd.
3. Ld.Sr.DR vehemently opposed for unconditional stay being
granted to assessee. She submitted that in the event stay has been
granted, assessee may be directed to make some payment towards
outstanding balance.
4. We have perused submissions advanced by both sides in light
of records placed before us. From the facts presented before us it
appears that assessee has prima facie made out case on merit,
however, allowability of claim would depend upon detailed
analysis on the basis of arguments and other documents relevant
for deciding the issue. In the meantime having established a prima
facie case, balance of convenience tilts in favour of assessee. We
are therefore inclined to grant stay of outstanding demand upon
fulfilment of following conditions:
assessee shall deposit payment of Rs. 10 Lakhs in 2 equal
instalments of 5 Lakhs each on or before 31/03/19 and
15/04/19;
no adjournment would be taken by assessee on the next date
of hearing and without there being a cogent reason.
Upon presenting the challans of payments being deposited, stay
shall be granted to assessee for a period of 6 months. Registry is
directed to fix the appeal in ITA No. 7386/Del/2019 for hearing on
3
S.A.No.242/Del/19
Arising out of ITA 7386/Del/18)
M/s AJB Developers P Ltd.
22/04/19. Needless to say that in the event assessee violates any
of the aforestated conditions, stay shall stand automatically
vacated.
5. In light of the above, Stay Application stands disposed off.
Order pronounced in the open court on 13/3/19.
Sd/- Sd/-
(R.K.PANDA) (BEENA A PILLAI)
Accountant Member Judicial Member
Dated: 13 March, 2019.
*gmv
Copy of the Order forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(A)
5. DR
6. Guard File
By Order
Asst. Registrar
ITAT, Delhi Benches, New Delhi
4
|