2014 (5) TMI 662 - AT - Income Tax

Non-speaking order - Enhancement of income u/s 251(2) of the Act levy of penalty u/s 271(1)(c) of the Act - CIT was not properly briefed about the facts of the case, otherwise he would have not mentioned that assessee s appeal was disposed of by the FAA - His order for rejecting the petition is not a speaking order the order of the CIT-16 is silent about the opportunity given to the assessee, before an adverse view was taken against it. Even if he had heard the assessee the fact is not apparent from the order - the assessee has not been heard and the order of the CIT-16 is very short and cryptic - the guidelines issued in KEC International Limited. Versus BR. Balakrishnan And Others 2001 (3) TMI 32 - BOMBAY High Court the matter is required to be remitted back to the CIT to pass a speaking and reasoned order Demand arising out of the order of the penalty order of the FAA, is stayed - Decided in favour of Assessee.

Summary

Issues:
1. Rejection of stay petition by CIT-16, Mumbai for the demand arising from penalty order of FAA.

Analysis:
1. The assessee had requested a stay on a demand of Rs. 46.72 lakhs, out of which Rs. 2.50 lakhs had already been paid. The demand arose due to penalty imposed by the FAA, which was challenged before the Tribunal. The CIT-16 rejected the stay petition citing lack of legal authority under section 220(6) as the first appeal was disposed of by the CIT(A) and pending before ITAT.

2. During the hearing, the AR of the assessee argued that foreign exchange forward contract cancellation charges should be treated as business loss, citing various court cases. The Tribunal noted that the CIT-16 did not properly consider the facts of the case and rejected the petition mechanically without a speaking order. Reference was made to cases emphasizing the need for a reasoned order when rejecting stay petitions during pending appeals.

3. The Tribunal found that the CIT-16's order lacked a proper consideration of the assessee's case and did not follow guidelines set by high courts for passing orders on stay applications. It was observed that the assessee was not heard, and the order was brief and cryptic. Therefore, the Tribunal directed the matter to be restored to the file of CIT-16, Mumbai for a speaking and reasoned order within one month, affording a reasonable opportunity of hearing to the assessee.

4. In conclusion, the demand arising from the penalty order of the FAA was stayed for a month or until the CIT-16's decision, whichever is earlier. The Tribunal allowed the stay application filed by the assessee-firm, emphasizing the importance of a well-reasoned order in such matters.

This judgment highlights the significance of providing a fair opportunity of hearing and issuing reasoned orders when rejecting stay petitions during pending appeals, ensuring proper consideration of the assessee's case and compliance with legal guidelines.