Krishak Bharati Cooperative Limited v. The Assistant Commissioner Of Income Tax

$~ 15 *IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) No. 11969/2016 & C.M. No. 47133/2016 KRISHAK BHARATI COOPERATIVE LIMITED..... PetitionerThrough:Ms. Surekha Raman, Advocate. versus THE ASSISTANT COMMISSIONER OF INCOME TAX ..... Respondent Through:Mr. Ashok K. Manchanda withMr. Raghuvendra Singh, Advocates. CORAM:JUSTICE S.MURALIDHARJUSTICE PRATHIBA M. SINGH O R D E R%31.07.2017 1. On 21[st]December, 2016 following orders were passed: “Issue notice. Mr. Ashok K. Manchanda, SeniorStanding Counsel accepts notice. The petitioner/applicant is aggrieved by an orderdated 31.08.2016, which, in effect, supersedes anearlier order of 26.04.2016 that had granted stay ofdemand in respect of a sum of around Rs.23.8crores.Thetotaltaxdemandsagainstthepetitioners were about Rs.25.57 crores. Of thisbulk - about Rs.23.8 crores constitute liability onaccount of the Revenue's original view that thetransactions and amounts earned in Oman weretaxable. The Income Tax Appellate Tribunal hasruled in favour of the assessee. Apparently, these facts were taken into consideration while makingthe order of 26.04.2016. Thus of the balance, theAssessing Officer had proposed adjustments ofRs.1.77 crores against a larger sums outstandingand payable to the petitioner. Now, by theimpugned order he has reversed his position anddirected the entire refund amount as against theother dues and even superseded the earlier stayorder. Prima facie this does not appear to be thecorrect legal position. Consequently, the operation of the impugned orderis stayed till the next date of hearing. List on 27.03.2017.” 2. Today, learned counsel for the Petitioner has drawn the Court’s attentionto the judgment dated 21[st]April, 2017 in ITA Nos. 578/2016 and 579/2016,Principal Commisisoner of Income Tax v. Krishak Bharati CooperativeLimited whereby for the Assessment Years (‘AY’) 2010-11 and 2011-12,this Court upheld the order of the Income Tax Appeallate Tribunal (‘ITAT’)to the effect that dividend income was taxable but exempt under Omani lawand that the Assessee was entitled to the benefit of the Indo-Oman DoubleTaxation Avoidance Agreement (‘DTAA’). 3. Following the above order, the Commissioner of Income Tax (Appeals)[‘CIT(A)’] allowed the appeal filed by the assessee against the assessmentorder dated 28[th]March, 2016 of the Assessing Officer (AO) for AY 2012-13. Since the appeal itself has been disposed of by the CIT (A), theimpugned interim order passed by the CIT (A) during the pendency of theappeal, which is the subject matter of challenege in the present petition, obviously cannot continue. 4. In that view of the matter, the only direction that needs to be issued in thepresent petition is to direct the Revenue to give appeal effect to the order ofthe CIT(A) , subject to any appeal that may be filed by the Revenue againstthe said order. This observation should not be construed as a direction to theRevenue to file an appeal. 5. The refund amount, if any, should be credited to the account of thePetitioner, together with interest due thereon, not later than four weeks afterthe expiry of the period of limitation for filing the appeal. 6. The petition is disposed of in the above terms. S. MURALIDHAR, J. JULY 31, 2017srb PRATHIBA M. SINGH, J.