General Motors India Private Limited, , ... vs Assessee

IN THE INCOME TAX APPELLATE TRIBUNAL " D " BENCH, AHMEDABAD (BEFORE SHRI SHAILENDRA Kr. YADAV, J.M. & SHRI ANIL CHATURVEDI, A.M.)

S.P. No. 47 /AHD/2015 ( In ITA No. 713/AHD/2015) (Assessment Year: 2010-11)

General Motors India Private V/S Jt. CIT, Panchmahal Rg, Limited Chandrapura Godhra Industrial Estate, Halol, District Panchmahal, Gujarat 389351

(Appellant) (Respondent)

Appellant by : Shri. Dhinal Shah, A.R. Respondent by : Shri . Dinesh. Singh, Sr. D.R.

(आदे श)/ORDER

Date of hearing : 15-05 -2015 Date of Pronouncement : 15 -05-2015

PER SHRI ANIL CHATURVEDI,A.M.

1. Through this stay petition, Assessee want us to stay for tax demand of Rs. 63,44,91,906/- which comprises of tax of Rs. 41,05,23,254/- and interest of Rs. 22,39,67,906/- for A.Y. 2010-2011 and against total tax demand Assessee has paid Rs. 5 crore.

2. Before us, ld. A.R. submitted that the demand is mainly on account of transfer pricing additions of Rs. 339 crores and against the return loss of Rs. 212.72 crores, the income has been assessed at Rs. 115.69 crores. With 2 S.P No 47/A/15 (in ITA No. 713/A/2015) . A.Y. 2010-11 respect to addition of Rs. 300 crore on account of import of CKD/Spare parts. He submitted that addition was made by the A.O by not accepting the foreign company (GMDAT) as tested party. He submitted that similar adjustment was made in A.Y. 2006-07 & 2007-08wherein Hon'ble ITAT had accepted GMDAT as tested party. He therefore submitted that the addition of Rs. 300 crores was identical to that of earlier years and the issue has been decided in favour of the Assessee. He further submitted that Assessee is a sick company as per the Sick Industrial Companies as Special Provisions Act 1985 (SICA) and it has been registered u/s. 15(1) by Board for Industrial and Financial Re-construction (BIFR) by letter dated 27th January, 2015. He therefore submitted that since Assessee is a Sick Company and therefore as per Section 22 of SICA, no cocercive measures can be taken to recover demand under any law except with the consent of BIFR. He therefore submitted that the entire demand be stayed. In the alternate, he submitted that Assessee is willing to deposit Rs. 1 crore. The ld. D.R. on the other hand opposed the stay petition filed by the Assessee and submitted that Assessee be asked to pay at least 50% of the demand.

3. We have heard the rival submissions and perused the material on record. After considering the facts and circumstances of the case and in view of the fact that Assessee is ready to deposit Rs. 1 crore, we are of the view that in the present case, Assessee deserves a stay of demand subject to the following conditions:-

4. (a) Assessee shall pay Rs. 1 crore of the disputed demand before 15th June, 2015.

3 S.P No 47/A/15 (in ITA No. 713/A/2015) . A.Y. 2010-11

(b) Subject to the fulfillment of the above conditions, the rest of the demand is hereby stayed for a period of 180 days from the date of this order or till the disposal of appeal whichever is earlier on the following conditions:-

(i) The appeal is fixed for hearing on 17th June, 2015. Since the date of hearing of appeal has been pronounced in the open court, the issuance of separate notice is dispensed with.

(ii) Assessee shall not seek any adjournment on the date of hearing.

(iii) If a paper book is desired to be filed by the Assessee then the same should be submitted well in advance as prescribed in ITAT Rules.

In case of breach of the conditions stated hereinabove, the stay granted shall automatically get vacated unless directed otherwise by the Bench.

5. In the result, the Stay Petition is allowed on the terms indicated in the

foregoing paragraphs.

Order pronounced in Open Court on 15 - 05 - 2015.

Sd/- Sd/- (SHAILENDRA Kr. YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad. TRUE COPY Rajesh

Copy of the Order forwarded to:- 1. The Appellant. 2. The Respondent. 3. The CIT (Appeals) - 4. The CIT concerned. 5. The DR., ITAT, Ahmedabad. 6. Guard File. By ORDER