Hyundai Motor India Limited, ... vs Assessee

M/s. Hyundai Motor India Limited, The Deputy Commissioner of Plot No.H-1, SIPCOT Vs Income Tax, Industrial Park, Large Taxpayer Unit-II, Irrungatukottai, Chennai 600 101. Sriperambudur Taluk, Kancheepuram District, Chennai 602 117.

[PAN:AAACH 2364M] (Petitioner) ( यथ /Respondent)

Petitioner by : Shri. Vikram Vijayaraghavan, Advocate Respondent by : Shri. Das Gupta, JCIT.

सन ु वाई क तार ख/Date of hearing : 20.03.2015 घोषणा क तार ख /Date of Pronouncement : 20.03.2015

आदे श / O R D E R

PER CHANDRA POOJARI, ACCOUNTANT MEMBER

The assessee filed this stay petition seeking the stay of

outstanding dispute demand of A59,24,50,550/-.

:- 2 -: S.P.No.139/Mds/2015 in I.T.A.No.563/Mds/2015.

2. The learned Authorised Representative, submitted that demand

has arisen mainly because of the following adjustments.

(1) Brand promotion.

(2) Disallowance of Target Plus Scheme.

(3) Disallowance of interest under Section 40(a)(i)

(4) Disallowance under Section 14A

(5) Subsidy received towards capital expenditure.

According to the ld. Authorised Representative, this issue is to be

decided in favour of the assessee, more so when similar issues in

assessee's own case which are pending for adjudication and orders are

awaited. Further, he submitted that in this case the demand raised is

very high, which is causing acute financial hardship to the assessee

and in view of the judgment of Delhi High Court in the case of Soul

vs. DCIT 220 CTR 211 (Del) stay to be granted.

3. On the other hand, the Departmental Representative submitted

that the assessee is not having any financial hardship and as such stay

shall not be granted.

4. We have heard the rival submissions and perused the materials

on record and also examined the decision cited by the ld. Authorised :- 3 -: S.P.No.139/Mds/2015 in I.T.A.No.563/Mds/2015.

Representative. We accept that Tribunal has got inherent power to

stay the outstanding tax demand. However, while granting stay, the

Tribunal has to consider three factors viz., prima facie case, balance of

convenience and irreparable injury that may be caused to the party if

stay is not granted. The power of the Tribunal is not likely to exercise

in routine way or as a matter of course in view of the special nature of

taxation and revenue laws. It will only be when a strong prima facie

case is made out that the Tribunal will consider whether to stay

recovery proceedings and on what conditions and the stay will be

granted in most deserving and appropriate cases where the Tribunal is

satisfied that the entire purpose of the appeal will be frustrated or

rendered nugatory by allowing the recovery proceedings to continue

during the pendency of the appeal. Therefore, considering the

observation of the Supreme Court in the case of ITO vs. M.K.

Mohammed Kunhi 71 ITR 815 (SC) in our opinion the assessee made

out of prima facie case and balance of convenience is in favour of

granting stay to the assessee. However, the assessee is not able to

show any financial hardship which may be caused to the assessee if

the absolute stay is not granted. Hence, we are not in a position to

grant absolute stay in this case. On the other hand, the assessee is a

cash rich company, in these circumstances, we are inclined to grant :- 4 -: S.P.No.139/Mds/2015 in I.T.A.No.563/Mds/2015.

conditional stay that the assessee shall pay Rupees Ten Crores on or

before 31.03.2015 and the balance outstanding demand is stayed for

a period of 180 days from the date of this order or disposal of this

appeal whichever is earlier.

5. With these observations, we dispose the above stay petition.

Order pronounced on Friday, the 20th of March, 2015, at Chennai.

Sd/- Sd/- (V.DURGA RAO) (CHANDRA POOJARI) JUDICIAL MEMBER ACCOUNTANT MEMBER चे नई/Chennai. !दनांक/Dated:20.03.2015. KV

आदे श क & त'ल)प अ,े)षत/Copy to: 1. Petitioner 2 Respondent 3. CIT(A) 4. CIT

5. DR 6.GF.