1. Coca-Cola
India (P.) Ltd. Vs. Assistant Registrar representing Income Tax
Appellate Tribunal, Writ Petition No. 1214 OF 2014, DATE: 04.03. 2014,
Bombay High Court
The
question of irreparable loss not the only consideration while dealing
with application for stay of demand. If this were so, every assessee
with the means of deposit would be denied a right to seek stay of demand
irrespective of the merits of his case. This is insupportable either on
principle or on authority, However, Assessing Officers and appellate
authorities perform quasi-judicial functions under the Act. Applications
for stay require judicial consideration. Rejecting such applications
without hearing the assessee, considering submissions and indicating at
least brief reasons is impermissible.
The judgment
of the Division Bench of this court in KEC International Ltd. v. B.R.
Balakrishnan [2001] 251 ITR 158 (Bom), lays down guidelines in regard to
the manner in which applications for stay should be disposed of.
(a) While considering the stay application, the authority concerned will at least briefly set out the case of the assessee.
(b) In cases
where the assessed income under the impugned order far exceeds the
returned income, the authority will consider whether the assessee has
made out a case for unconditional stay. If not, whether looking to the
questions involved in appeal, a part of the amount should be ordered to
be deposited for which purpose, some short prima facie reasons could be
given by the authority in its order.
(c) In cases
where the assessee relies upon financial difficulties, the authority
concerned can briefly indicate whether the assessee is financially sound
and viable to deposit the amount if the authority wants the assessee to
so deposit.
(d) to (e) ****
The above parameters are not exhaustive. They are only recommendatory in nature."
(Please click here for judgment)
2. EPCOS
AG Vs. Deputy Director of Income-tax (Internatioal Taxation), IT
Appeal No. 2535 (Pune) of 2012, Date of Order : 31.01.2014, ITAT-PUNE
Assessee having no PE at all, or having PE but no income attributable to PE will not be liable to tax in India.
The assessee
company did not have any PE in India, much less a PE to which subject
'royalties' and 'fees for technical services' can be attributed. In
terms of the India-Germany DTAA, India does not have right to tax these
receipts as business profits under art. 7. Moreover no revenues earned
by the assessee company could be said to be attributable to the PE, even
if one was to come to the conclusion that a PE existed, no taxability
could arise under art. 7. The overzealous approach of the AO has been
rightly rejected by the CIT (A).
(Please click here for judgment)
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