I)Ishikawajima-Harima Heavy Industries Ltd v. Director Of Income-Tax, Mumbai[1]; And

1 of 4 WP(L).2828.2013 IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO.2828 OF 2013 ANDWRIT PETITION (L) NO.2829 OF 2013AND WRIT PETITION (L) NO.2831 OF 2013 Atomstroy ExportPetitioner versusThe Deputy Director of Income Tax(International Taxation-1(1), Mumbaiand othersRespondents Mr.Nitesh Joshi with Mr.Sameer Dalal for Petitioner. Mr.Vimal Gupta, Sr.Counsel a/w Mrs.Padma Divekar for Respondents. CORAM : MOHIT S. SHAH, C.J. AND M.S.SANKLECHA, J. PC : DATE : 13 November 2013 1.Rule. Learned counsel for the Respondents waives service. By consent, the Rule is made returnable forthwith. The writ petition is taken up for hearing and final disposal, by consent and on the request of learned counsel. 2.This writ petition challenges the order dated 14 August 2013 of the Income Tax Appellate Tribunal insofar as the Tribunal has not granted interim stay against recovery of tax and required the 2 of 4 WP(L).2828.2013 Petitioner-Assessee to pay the entire tax demand of Rs.80,53,70,575/- in aggregate in respect of A.Ys.2006-2007 to 2008-2009. The Tribunal has only granted stay against recovery of interest on the tax amount. The total demand made by the Revenue is to the tune of Rs.130,75,01,346/- out of which the assessee has paid Rs.50,21,30,771/- and the balance liability for which the Petitioner sought stay is Rs.80,53,70,575/-. 3.It needs to be noted that when the Petitioner-Assessee filed stay application, by the first order dated 8 June 2012, the Tribunal directed the registry to post the appeal on out of turn basis for final hearing on 30 August 2012 and observed that in case Petitioner's stay application before the DIT is disposed of by rejecting the plea of assessee, the assessee would be at liberty to file a fresh application before the Tribunal and in order to enable the assessee to approach the Tribunal, the Revenue was directed not to take any coercive steps for a period of three weeks after disposal of the stay petition by the DIT. 4.The learned counsel for the Petitioner submits that though the appeal was fixed for early hearing on 30 Augus 2012, the hearing has not taken place so far and it was not the Petitioner who had prayed for adjournments but the appeal could not be taken up for hearing for other reasons. It is submitted that now the appeal is going to be listed for hearing on 27 November 2013. 5.The learned senior counsel for the Revenue has opposed the writ petition and submitted that the discretionary order passed by the 3 of 4 WP(L).2828.2013 Tribunal on the stay application does not call for any interference in exercise of writ jurisdiction, more particularly when the Petitioner is a foreign company and it will be difficult for the Revenue to make recovery in case the appeal is dismissed by the Tribunal. 6.Learned counsel for the Petitioner thereupon submits that the contract in question is being executed by the Petitioner under the Ministry of Russian Federation for Atomic Energy, Moscow, Russian Federation and that presently only first two phases of the contract are under execution and that the third and the fourth phases of execution are yet to take place and, therefore, the Petitioner is not going to run away from India. It is submitted that the contract in question has been awarded by the Neuclear Power Corporation of India Limited in view of inter governmental agreement. Therefore, in the facts of the case, the apprehension expressed by the learned counsel for the Revenue is misplaced. 7.Learned counsel for the Petitioner placed reliance on following decisions of Supreme Court : (i)Ishikawajima-Harima Heavy Industries Ltd. Vs. Director of Income-Tax, Mumbai[1]; and (ii)Commissioner of Income Tax, Meerut Vs. Hyundai Heavy Industries Co. Ltd.[2]. 1[2007]288-ITR-408 (SC) 2[2007]161-Taxman-191 (SC) 4 of 4 WP(L).2828.2013 7.Learned counsel for the Petitioner placed reliance on following decisions of Supreme Court : (i)Ishikawajima-Harima Heavy Industries Ltd. Vs. Director of Income-Tax, Mumbai[1]; and (ii)Commissioner of Income Tax, Meerut Vs. Hyundai Heavy Industries Co. Ltd.[2]. 1[2007]288-ITR-408 (SC) 2[2007]161-Taxman-191 (SC) 4 of 4 WP(L).2828.2013 8.Having heard the learned counsel for the parties and having regard to the fact that the Tribunal itself had by an order dated 8 June 2012 fixed the appeal for early final hearing on 30 August 2012 and that the Petitioner-Assessee has already paid a sum of Rs.50,21,30,771/- against the tax demand of Rs.130,75,01,346/- and also having regard to the fact that the appeal is already going to be listed before the Tribunal for final hearing on 27 November 2013, in the peculiar facts and circumstances of the case highlighted by the counsel for the Petitioner, we deem it fit to modify the order dated 14 August 2013 of the Income Tax Appellate Tribunal by granting the Petitioner interim stay against coercive recovery for the balance amount of tax and interest till final disposal of the appeal by the Tribunal. We make it clear that this relief is being granted to the Petitioner in view of the statement made by the counsel for the Petitioner that the Petitioner will not ask for any adjournment before the Tribunal. We further make it clear that we may not be treated to have expressed any opinion on the merits of the controversy which is subject matter of the appeals pending before the Tribunal. The Tribunal shall decide the appeals on their own merits and in accordance with law. 9.The petition accordingly stands disposed of. There shall be no order as to costs. (CHIEF JUSTICE) (M.S.SANKLECHA, J.)