Tata Power Solar Systems Ltd, vs Assessee

BEFORE S/SHRI B.R.BASKARAN (AM) AND SANJAY GARG, (JM) सव ी बी.आर.बा करन, लेखा सद य एवं ी संजय गग , या यक सद य के सम

Stay Application No.32/Mum/2015 arising out of आयकर अपील सं./ ITA No.752/Mum./2015 ( नधा रण वष / Assessment Year: 2010-11)

Tata Power Solar Systems बनाम/ Dy.Commissioner of Income Limited, Vs. Tax, Cir 8(3)91), 78, Electronics City, Hosur Aayakar Bhavan, M K Road, Road, Bangalore-560-100 Mumbai-400020 (अपीलाथ8 /Appellant) .. (9:यथ8 / Respondent)

थायी ले ख ा सं . /जीआइआर सं . /PAN/GIR No. : AAACT4660J

अपीलाथ8 ओर से / Appellant by S/Shri Dhanesh Bafana with Arpit Agrawal 9:यथ8 क= ओर से/Respondent by Shri Jeetendra Kumar

सन ु वाई क= तारAख / Date of Hearing : 13.2.2015 घोषणा क= तारAख /Date of Pronouncement : 13.2.2015 आदे श / O R D E R

Per B.R.BASKARAN, Accountant Member:

The assessee has filed this stay application seeking stay of

outstanding demand. The ld. counsel appearing for the assessee submitted

that the original demands raised by the assessee was reduced to

Rs.18,98,42,081/- consequent to rectification application filed before AO

on 28.1.2015. However, in the rectification order also there are certain

mistakes i.e. AO has not given MAT credit for AY 2008-09 amounting to

Rs. 4.97 crores. The ld. counsel submitted that the demand would further SA No.32/M/2015 2

reduce to Rs.11.18 crores, if the AO allow deduction of MAT credit relevant

to AY-2008-09.

2. The ld. counsel for the assessee submitted that the assessee has got

prima facie good case on merit also. The ld. counsel submitted that the

addition pertaining to Transfer Pricing Adjustment made by the Transfer

Pricing Officer and confirmed by DRP. The ld. counsel submitted that the

TPO has taken one party M/s Surana Ventures Limited as one of the

comparables and according to the assessee the said party cannot be taken

as comparable case. He submitted that the leaving aside the above said

party, then arithmetic mean of the final set of the comparable which

worked out to 9.72%. The ld. counsel submitted that the assessee had

declared a fall margin of ± 5%. According to the ld. AR the difference

between the two falls is within 5%. Accordingly, he submitted that the

assessee got good chance for succeeding in the appeal filed by the

assessee. Accordingly, he prayed that the entire demand may be stayed.

3. On the contrary, the ld. DR submitted that prima facie a case

submitted by the assessee is not acceptable to the department. He further

submitted that the assessee has failed to show the financial position.

Accordingly, he submitted that the Stay Application should not be allowed.

4. In the rejoinder, the ld. AR furnished a copy of condensed balance

sheet dated 31.12.2014 and submitted that the assessee has incurred

huge losses during the year under consideration and net cash flow from

operations has resulted in a negative figures.

SA No.32/M/2015 3

5. We have heard the rival submissions and perused the record.

Admittedly, the submissions made with regard to the merits of the

additions, it can only be considered at the final hearing of the appeal. A

perusal of the financial statement furnished by the assessee would show

that the assessee is having comfortable financial position as on

31.12.2014. Even though it had incurred losses during that period.

Hence, conspectus of the matter, we are of the view, that the assessee

does not deserves for grant of absolute stay of the outstanding demands.

Accordingly, we direct the assessee to pay a sum of Rs.2 crores in two

installments viz the first installment should be paid on or before 28.2.2015

and the second installment shall be paid on or before 31.3.2015. Subject

to the payment of two installments, we grant stay of balance amount of

outstanding demand for a period of six months or till the disposal of the

appeal whichever period expires earlier. We are also of the view that this

appeal would be heard on out of turn basis. Accordingly, we direct the

registry to post this appeal for hearing on 16.4.2015. Since the date of

hearing is announced in the open court in the presence of both the

parties, the registry is directed not to send any formal notice of hearing to

the parties. We also caution the assessee that it should not seek any

adjournment, without a reasonable cause, on the date of hearing and if

adjournment is sought, the present stay order shall be subject to review

by the Regular Bench.

SA No.32/M/2015 4

6. In the result, the stay application filed by the assessee is partly

allowed.

The above order was pronounced in the open court on 13th Feb 2015.

th घोषणा खल ु े यायालय मE Fदनांकः 13 Feb 2015 को क= गई ।

sd sd (SANJAY GARG/संजय गग ) (बी.आर.बा करन / B.R. BASKARAN) या यक सद य / JUDICIAL MEMBER लेखा सद य / ACCOUNTANT MEMBER

th मंब ु ई Mumbai: 13 Feb,2015.

व. न.स./ SRL , Sr. PS

आदे श क !त#ल$प अ%े$षत/Copy of the Order forwarded to :

1. अपीलाथ8 / The Appellant

2. 9:यथ8 / The Respondent.

3. आयकर आयुIत(अपील) / The CIT(A)- concerned

4. आयकर आयुIत / CIT concerned

5. Jवभागीय 9 त नLध, आयकर अपीलAय अLधकरण, मुंबई / DR, ITAT, Mumbai concerned

6. गाड फाईल / Guard file.

आदे शानुसार/ BY ORDER, true copy सहायक पंजीकार (Asstt. Registrar) आयकर अपीलAय अLधकरण, मुंबई /ITAT, Mumbai