Order dated 25.09.2019 in T.C.A.No.648 of 2019 Intimate Fashions (India) Private Limited vs. Joint Commissioner of Income Tax IN HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.09.2019 CORAM : HON'BLE DR.VINEET KOTHARI, ACTING CHIEF JUSTICE AND HON'BLE MR.JUSTICE C.SARAVANAN Tax Case Appeal No.648 of 2019 and C.M.P.No.18807 of 2019 Intimate Fashions (India) Private Limited, Thiruporur Kottamedu High Road, Nandhivaram Village, Guduvanchery-603 202 ...Appellant Vs. Joint Commissioner of Income-tax, Corporate Circle 2(2), Nungambakkam, Chennai-600 034 .. Respondent Tax Case Appeal filed under Section 260A of Income Tax Act, 1961 against order of Income-Tax Appellate Tribunal 'D' Bench, Chennai, dated 21.06.2019, in W.P.No.200/Chny/2019. For Appellant : Mr.Srinath Sridevan For Respondent: Mr.Karthik Ranganathan Page 1 of 7 http://www.judis.nic.in Order dated 25.09.2019 in T.C.A.No.648 of 2019 Intimate Fashions (India) Private Limited vs. Joint Commissioner of Income Tax JUDGMENT (Judgment of Court was made by Hon'ble Acting Chief Justice) This appeal has been filed by assessee aggrieved by interlocutory order passed by learned Income-Tax Appellate Tribunal 'D' Bench, Chennai, on 21.06.2019, for Assessment Year 2009-10. By said order, learned Tribunal has rejected stay application filed by appellant/assessee before it. appeal for said Assessment Year 2009-10 is still pending before Tribunal and hearing is said to be fixed on 31.12.2019. 2.The learned counsel for Assessee Mr.Srinatha Sridevan has urged before us that even though for previous Assessment Years 2001-02 to 2003-04, Assessee had succeeded on same issue, viz., dis-allowance of commission paid by it to its Associate Enterprise M/s.Triumph International Overseas Limited, Liechtenstein, but without even noticing said fact, learned Tribunal has observed in order that issue relating to Arms Length Price Adjustment will require verification of various factual aspects, vide paragraph No.4 of its order but held that Page 2 of 7 http://www.judis.nic.in Order dated 25.09.2019 in T.C.A.No.648 of 2019 Intimate Fashions (India) Private Limited vs. Joint Commissioner of Income Tax therefore it cannot be said that Assessee company is having prima facie case in its favour on merits . 3.The learned counsel, therefore, submitted that in view of above self-contradictory observations of learned Tribunal, in facts of case, interim relief in favour of Assessee ought to have been granted. learned counsel also drew our attention to fact that Assessee Company has already paid sum of Rs.75 lakhs as against demand of Rs.1.84 Crores for said Assessment Year 2009-10, as noted in interim order passed by coordinate Bench of this Court, on 29.08.2019, in present appeal. 4.The learned counsel for respondent Department Mr.Karthik Ranganathan, however, supported impugned order. 5.Having heard learned counsels for parties, we are of opinion that present matter deserves to be remitted back to learned Tribunal for passing reasoned and speaking order on stay application filed by Assessee. For arriving at __________ Page 3 of 7 http://www.judis.nic.in Order dated 25.09.2019 in T.C.A.No.648 of 2019 Intimate Fashions (India) Private Limited vs. Joint Commissioner of Income Tax conclusion whether Assessee has prima facie case or not, at least, case facts should have been discussed by Tribunal in some detail. Whether such dis-allowance has been made for earlier assessment years or not was relevant fact, which appears to have escaped notice of Tribunal, though raised in stay application filed before learned Tribunal. Three relevant aspects should be always taken into consideration by all Tribunals or civil Courts, while considering stay applications, which are (I) existence of prima facie case (II) Irreparable injury aspect and (III) Balance of convenience. These are well settled and statutorily required para meters to be considered by dealing with stay applications. 6.The learned Tribunals or Civil Courts are bound to give their findings and reasons, even though tentative, with respect to above three aspects of matter while dealing with any stay applications before them. 7.The tenor of order impugned before us does not meet these requirements. While holding that Assessee has no __________ Page 4 of 7 http://www.judis.nic.in Order dated 25.09.2019 in T.C.A.No.648 of 2019 Intimate Fashions (India) Private Limited vs. Joint Commissioner of Income Tax prima facie case, Tribunal has not even whispered about facts of case. self conflicting observation has been made in Paragraph No.4 of order, where, Tribunal says that making of Arms Length Price Adjustment will require factual verification by fact finding body, viz., Tribunal itself, while it hears appeal finally, but Assessee has no prima facie case. 8.Therefore, we allow present appeal and set aside impugned interlocutory order, dated 21.06.2019, passed by Tribunal and request learned Tribunal to hear parties on said stay application again and pass appropriate fresh order in matter expeditiously, preferably, within period of three months from today. parties in first instance, without any further notice from Tribunal, may appear before Tribunal on 03.10.2019. No costs. Connected miscellaneous petition is closed. (V.K.,ACJ.) (C.S.N.,J.) 25.09.2019 msk Index : Yes/No Page 5 of 7 http://www.judis.nic.in Order dated 25.09.2019 in T.C.A.No.648 of 2019 Intimate Fashions (India) Private Limited vs. Joint Commissioner of Income Tax To: 1.Joint Commissioner of Income-tax, Corporate Circle 2(2), Nungambakkam, Chennai-600 034 2.The Income-Tax Appellate Tribunal 'D' Bench, Chennai Page 6 of 7 http://www.judis.nic.in Order dated 25.09.2019 in T.C.A.No.648 of 2019 Intimate Fashions (India) Private Limited vs. Joint Commissioner of Income Tax Hon'ble Acting Chief Justice and C.Saravanan, J. msk Tax Case Appeal No.648 of 2019 25.09.2019 Page 7 of 7 http://www.judis.nic.in Intimate Fashions (India) Private Limited v. Joint Commissioner of Income-tax, Corporate Circle 2(2), Chennai