2018 (4) TMI 632 - AT - Income Tax

Exemption u/s 11 denied - stay application moved by the assessee - Assessing officer moved the present application for vacation of ex-parte Stay order dated 15.2.2017 and 28.4.2017 - recovery proceedings initiated - Held that - On each and every date of hearing, fresh orders for maintaining status quo were passed. In view of this, since the period of operation of the orders has already passed/ has become a past, we will be astonished to know how the vacation of the stay order dated 15.2.2017 and 28.4.2017 the period of operation of which was upto 4.5.2017 and 22.5.2017 respectively, at this stage, will in any manner of any help to the department. The vacation of order dated 15.2.2017 or of 28.4.2017 at this stage will not absolve the concerned officer/s of their act of violation of order during the subsistence of the order. We have not come across with any case law laying down the proposition that interim stay orders can be vacated with retrospective effect. Even the orders dated 15.2.2017 and 28.4.2017 have not been continued as such rather the subsequent stay orders were passed in view of subsequent developments / change of circumstances such as recovery of the amount by the Department in violation of stay order dated 15.2.2017 and thereafter order of the Tribunal directing for refund of the amount dated 28.4.2017 and thereafter the status quo order after the statement of the AO that amount has been refunded to the assessee and also in view of the reluctanceof the concerned DRs in arguing the matter and seeking adjournments The assessing officer in her application for condonation of delay with covering letter dated 20.2.2018 has referred to various dates of hearings stating that she was waiting for the disposal of the Misc. Application filed by the assessee against violation of the order dated 15.2.2017. This shows that the concerned ITO (E) was aware of the subsequent orders of stay/status quo, then why the application for vacation of two orders only has been filed is not understandable. The department officials fully knowing that no useful purpose will be served either by moving the present application and even knowing that the present application was infructuous and non-maintainableeven on the date of its filing, not onl y filed this application, but also insisted for arguments despite that the hearing on the main appeal had already been concluded on a previous date. The only motive behind this application is to confront and show resentment and displeasure to this Tribunal for granting interim stay against recovery in this matter. This application is therefore dismissed with costs of ₹ 20,000/- to be deposited in Prime Minister s Relief fund within 15 days of receipt of the copy of this order

Issues Involved:
1. Vacation of ad interim stay orders dated 15.2.2017 and 28.4.2017.
2. Recovery of tax demand by the Assessing Officer despite the stay order.
3. Justification for vacation of interim stay orders.
4. Department's conduct and compliance with judicial orders.

Detailed Analysis:

1. Vacation of ad interim stay orders dated 15.2.2017 and 28.4.2017:
The department filed an application to vacate the ad interim stay orders dated 15.2.2017 and 28.4.2017. It argued that the orders were non-reasoned and contrary to well-settled law. The Tribunal had initially stayed the recovery of demand as an interim measure on 15.2.2017 and extended it on 28.4.2017. However, the Tribunal noted that these orders were interim measures and had already expired, with subsequent orders superseding them.

2. Recovery of tax demand by the Assessing Officer despite the stay order:
Despite the stay order dated 15.2.2017, the Assessing Officer attached the assessee’s bank account on 17.2.2017 and recovered ?29,08,230/-. The Tribunal found this action illegal and directed the Assessing Officer to refund the amount. The Tribunal's order dated 28.4.2017 emphasized that the Assessing Officer violated the stay order despite being aware of it.

3. Justification for vacation of interim stay orders:
The Assessing Officer justified the recovery by claiming the absence of documentary evidence of the stay order. However, the Tribunal found no merit in this justification. It noted that the Assessing Officer did not provide any reasons or justification for vacating the interim stay orders, which had already been violated and disobeyed.

4. Department's conduct and compliance with judicial orders:
The Tribunal observed that the department officials, knowing the application was infructuous, insisted on arguments, showing open defiance and resentment towards the Tribunal's orders. The Tribunal criticized this conduct, warning that such actions could undermine the sanctity of the judicial system. It emphasized that the department should approach higher judicial authorities if aggrieved by any order, rather than showing defiance.

Conclusion:
The Tribunal dismissed the department's application for vacation of the stay orders, imposing costs of ?20,000/- to be deposited in the Prime Minister's Relief Fund. It warned the department against open defiance of judicial orders and emphasized the importance of respecting the judicial process. The Tribunal scheduled a follow-up to ensure compliance with its orders.

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