Subject: The learned DR opposed the granting of stay and submitted that though the case may be prima-facie in favour of the assessee,

Referred Sections:
section 56(2)(vii)(b) of the Income-tax Act, 1961

 
         IN THE INCOME TAX APPELLATE TRIBUNAL
             DELHI BENCH: `Friday/C ', NEW DELHI

     BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER
                          AND
         SHRI O.P. KANT, ACCOUNTANT MEMBER

                     S.A. No.577/Del/2019
             [Arising out of ITA No.2963/Del/2019]
                    Assessment Year: 2015-16

Shri Govind Kumar Khemka, Vs. Asstt.    Commissioner              of
C/o- M/s. RRA TAXINDIA, D-    Income Tax,
28, South Extension, Part-I,  Circle-47(1), New Delhi
New Delhi.
PAN :AAIPK5123A
         (Applicant)                  (Respondent)

                 Applicant by     Shri Rakesh Gupta, Adv.
                 Respondent by    Shri S.K. Mishra, Sr.DR

                        Date of hearing              10.05.2019
                        Date of pronouncement        10.05.2019
                             ORDER

PER O.P. KANT, A.M.:

     By way of this Stay Application, which is arising out of ITA
No. 2963/Del/2019 for assessment year 2015-16, the assessee is
seeking   stay   on    recovery   of   outstanding    demand      of
Rs.10,70,19,611/- .
2.   Before us, the Ld. counsel of the assessee referred to the
various pages of the application filed and submitted that
substantial part of the demand has been raised on account of
addition of Rs.28,65,00,000/- made by the Assessing Officer
under section 56(2)(vii)(b) of the Income-tax Act, 1961 (in short
`the Act') and sustained by the Ld. Commissioner of Income Tax
                                  2
                                                S.A. No.577/Del/2019






(Appeals). He submitted that the assessee purchased a property
from his brother for a consideration of Rs. 12 crores as against
stamp duty valuation of Rs.40.65 crores. The Assessing Officer
treated the difference amount as income of the assessee under
section 56(2)(vii)(b) of the Act as the consideration paid being less
than the stamp duty value. The assessee contended before the
Assessing Officer that proviso to section 56(2)(vii)(b) of the Act has
specifically excluded such purchase transaction made with
specified relatives, including brothers from treating as deemed
income. According to the Ld. counsel, both the Assessing Officer
as well as the Ld. CIT(A) has ignored the clear provisions of the
law and sustained the additions. In view of the Ld. counsel, the
issue in dispute is prima-facie in favour of the assessee. He
further submitted that the assessee has already paid demand of
Rs.2,28,72,312/-     out   of   the    total   demand     raised       of
Rs.12,98,91,923/- which constitute 23.50% of the tax part of the
demand and 17.60% of the total demand. The Ld. counsel
submitted that assessee is willing to pay further demand of Rs.20
lakhs, if the balance demand is stayed and early hearing is
granted to the assessee.
3.   On the other hand, the learned DR opposed the granting of
stay and submitted that though the case may be prima-facie in
favour of the assessee, but other ingredients for granting a stay
like, financial hardship or shortage of the fund and balance of
convenience has not been established by the assessee.
4.   We have heard the rival submissions of the parties and
perused the relevant material on record. It is evident that the
assessee has already paid almost 23.50% of the tax demand and
further willing to make payment of Rs. 20 Lakhs. In view of the
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                                                       S.A. No.577/Del/2019

arguments of the Ld. counsel of the assessee and the Ld. DR, we
find that prima-facie the case is in favour of the assessee,
although the ultimate fate of the addition shall be decided in
appeal after hearing both the parties. Keeping in view, all the
facts and circumstances of the case, we feel it appropriate to stay
the outstanding demand in the case of the assessee for a period of
6 months or till disposal of appeal, whichever is earlier, subject to
following conditions:
     (i)      The assessee shall make payment of Rs.20 lakhs within
              one month of this order against outstanding demand.
     (ii)     The assessee shall not seek any adjournment without any
              reasonable or adequate ground.






5.          Order accordingly.
6.          The registry is directed to fix the main appeal having ITA No.
2963/Del/2019 on 28/06/2019. The parties may be informed
accordingly.
7.          The stay application is disposed of with above terms and
conditions.

               Order is pronounced in the open court on 10th May, 2019.

           Sd/-                                        Sd/-
     [BHAVNESH SAINI]                              [O.P. KANT]
     JUDICIAL MEMBER                           ACCOUNTANT MEMBER

Dated: 10th May, 2019.
RK/-[d.t.d.s]
Copy forwarded to:
1.    Appellant
2.    Respondent
3.    CIT
4.    CIT(A)
5.    DR
                                                 Asst. Registrar, ITAT, New Delhi