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Shri Govind Kumar Khemka, C/o- M/s. RRA TAXINDIA, D- 28, South Extension, Part-I, New Delhi. vs. Asstt. Commissioner of Income Tax, Circle-47(1), New Delhi
May, 13th 2019

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 3 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
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