Hemlata Jain vs ACIT

Bhavnesh Saini, J

We have heard the Learned Representatives of both the parties and perused the material available on record.

Learned Counsel for the Assessee submitted that in these cases, A.O. has passed the assessment orders under section 143(3) of the I.T. Act, 1961, by treating the long term capital gains on sale of shares claimed as exempt under section 10(38) of the I.T. Act, 1961, as unexplained credit under section 68 of the I.T. Act, 1961. Learned Counsel for the Assessee also submitted that on other grounds and status of the additions confirmed/deleted by the Ld. CIT(A) as well as demand are as follows :

S. No

Particulars

A.Y. 2013-2014

A.Y. 2014-15

A.Y. 2015-16

Total

Additions made by Ld AO on account of

1.

On account of Long term capital gain on sale of shares treated as unexplained cash credit u/s 68

11,19,52,600/-

1,78,17,250/

2,51,77,200/

2.

Commission expense on accommodation entries

--

5,34,518/-

6,29,430/-

3.

Other Grounds

1,28,65,000/

4.

Total additions made by Ld AO (4=l+2+3

11,19,52,600/

1,83,51,770/

3,86,71,630/

16,89,76,000/-

5.

Additions deleted by Ld CIT(A

--

--

(1,26,85,000)

(1,26,85,000)

6.

Total additions sustained by Ld.CIT(A) (6=4-5

11,19,52,600/-

1,83,51,770/-

2,59,86,630/

15,62,91,000/

7.

Demand raised by Ld AO as per Notice of demand

4,70,83,850/-

86,55,690/-

1,82,30,680/-

7,39,70,220/-

8.

Demand sustained after CIT(A) orde

4,70,83,850/-

86,55,690/-

1,23,71,586/-

6,81,11,126/-

9.

Demand already paid

(94,16,771/-)

(17,31,139/-)

(36,46,136)

(1,47,94,046)

10.

Demand payable for which stay is requested (10=8-9)

3,76,67,080/-

69,24,551/-

87,25,450/-

5,33,17,080/-

2.1. Learned Counsel for the Assessee submitted that against the assessment orders, assessee preferred appeals before the Ld. CIT(A) who in turn did not grant relief to the assessee. Therefore, assessee is in three appeals before the Tribunal. Learned Counsel for the Assessee submitted that against the total outstanding demand for all the three years of Rs.6,81,11,126/- as per the notice of demand, assessee has already paid Rs.1,47,94,046/-, copies of the challans are placed on record. Learned Counsel for the Assessee, therefore, submitted that balance demand left for consideration in all the three years is Rs.5,33,17,080/-. Learned Counsel for the Assessee, therefore, submitted that assessee has already paid approximately 22% of the total outstanding demand. Learned Counsel for the Assessee submitted that assessee has entered into genuine share transactions and assessee has arguable case on merit. Learned Counsel for the Assessee submitted that in several decisions, the ITAT, Delhi Bench, in similar circumstances, has deleted the additions and relied upon the Orders of the ITAT, Delhi Bench in the cases of (1) Mukta Gupta vs. ITO in ITA.No.2766/Del./2018, (2) Jyoti Gupta vs. ITO in ITA.No.3510/Del./2018 (3) Veena Gupta vs. ACIT in ITA.No.5662/Del./2018 and (4) Meenu Goel vs. ITO in ITA.No.6235/Del./2018. Learned Counsel for the Assessee submitted that whatever statements were recorded at the back of the assessee were not subjected to cross-examination. Learned Counsel for the Assessee, therefore, submitted that assessee has a prima facie case for grant of stay against the outstanding demand in all the three years. Learned Counsel for the Assessee submitted that assessee maintained two bank accounts, copies of the bank statements are filed ending April, 2019. In SBI A/c. assessee has balance of Rs.19,406.77 and with HDFC Bank, New Delhi, assessee has closing balance of Rs.1,19,509.00. Learned Counsel for the Assessee, therefore, submitted that since assessee is facing financial hardship and is not in a position to pay the balance amount against such demand, therefore, balance demand may be stayed.

On the other hand, Ld. D.R. opposed to grant of the stay against the outstanding demand and submitted that atleast assessee may be directed to pay 50% of the demand in case stay is to be granted against the outstanding demand.

We have considered the rival submissions. It is a case in which additions have been made on account of unexplained credit under section 68 of the Act disallowing claim of assessee for exemption under section 10(38) of the I.T. Act, 1961. Without commenting on the merits of the case and considering the submissions of the parties, we are of the view that assessee has an arguable case on merit and as such disclosed prima facie case in favour of the assessee for grant of stay against the outstanding demand. The appeals of the assessee are pending for disposal before the Tribunal and assessee has already paid demand approximately 22% against the outstanding demand. The assessee has also filed copies of the two bank statements, in which assessee did not have sufficient amount to pay further amount to the Revenue Department. Therefore, considering the financial hardship of the assessee, balance of convenience also lies in favour of the assessee and in case, further amounts are recovered by coercive methods, assessee would suffer irreparable loss during the pendency of the appeals. In view of the facts and circumstances of the case, we stay the recovery of outstanding demand in all the three years for a period of six months or disposal of the appeals whichever expire earlier, subject to further payment of Rs.1 lakh per month in A.Y. 2013-2014 only, till the disposal of the appeals. Since it is a high demand case, we grant an early hearing of the appeals. Office is directed to fix the appeals for hearing on out of turn basis on 30.07.2019. Notice be issued to both the parties. Paper Book, if any, be filed as per Rules. Assessee shall not seek unnecessary adjournments in the matter. Copy of the Order be provided to both the parties.

In the result, Stay Applications of the Assessee are allowed, subject to the above conditions.