Case Law Details
Blackstone FP Capital Partners Mauritius V Limited Vs DCIT (ITAT Mumbai)
Undoubtedly, the core issue arising for consideration in the corresponding appeal of the assessee is, whether the long term capital gain arising out of sale of shares of an Indian company would be taxable in India. It is the stand of the assessee that since the assessee is having a TRC issued by Mauritius Revenue Authority, long term capital gain would not be taxable in terms of the treaty provisions. However, taxability or otherwise of long term capital gain has to be considered on substantive basis while dealing with the merits of the issue in the appeal proceedings. At this stage, the Bench is required to consider the prima facie case, balance of convenience and the irreparable injury which may be caused to either of the parties due to grant or refusal of stay. Admittedly, the assessee is a non-resident company and has neither any physical presence nor assets in India. Therefore, in our considered opinion, the assessee must pay 20% of the outstanding demand as agreed, within a period of two weeks from the date of this order and furnish the proof of such payment before the Tribunal as well as the AO Further, to safeguard the interest of revenue, for the balance 80% of the outstanding demand the assessee is directed to furnish a corporate guarantee from one of its associate enterprise in India, having assets exceeding the outstanding tax liability. The corporate guarantee, as noted above, shall be furnished by the assessee before the AO within a period of six weeks from the date of this order. Subject to fulfillment of the aforesaid conditions, recovery of the balance 80% of the outstanding demand shall remain stayed for a period of 180 days from the date of this order or till disposal of the appeal, whichever is earlier.
FULL TEXT OF THE ORDER OF ITAT MUMBAI
Captioned application has been filed by the assessee seeking stay of realization of outstanding demand amounting to Rs. 1,57,57,67,597/-, including interest charged under section 234B and 234C of Income Tax Act, 1961 for the assessment year 2016-17.
Please become a Premium member. If you are already a Premium member, login here to access the full content.
