2019 (8) TMI 1204 - AT - Income Tax

Stay of demand - Misc. Application to recall the stay order - HELD THAT - Operation of both the stay orders has expired due to lapse of six month time period from the date of the order. Therefore, when the orders have outlived their utility and lost their force in course of time, nothing survives for either recall or modification. That being the case, the present application filed by the Department seeking modification/variation of order dated 8th February 2019, in S.A. no.32/Mum./2019, has become infructuous. For the aforesaid reasons, we are unable to accede to the request of the Revenue to club this application with the stay application filed by the assessee. The fresh stay application filed by the assessee has to be considered on its own merit and it is open to the Revenue to put forward all its submissions objecting to grant of stay to the assessee. However, that is altogether an independent proceeding and has to be decided keeping in view the respective contentions of the parties. In view of the aforesaid, the present application filed by the Revenue having become infructuous deserves to be dismissed.

Summary

Issues:
1. Extension of conditional stay granted to the assessee.
2. Maintainability of the application filed by the Revenue.
3. Applicability of section 254(2) of the Act.
4. Validity of the order sought to be recalled.
5. Consideration of the fresh stay application filed by the assessee.

Analysis:
1. The initial stay order was granted to the assessee company with conditions to pay a specified sum and furnish a corporate guarantee within a set timeframe. The stay was to operate for six months or until the appeal's disposal. Subsequently, the stay was extended multiple times, with the last extension granted for 180 days or until the appeal's disposal.

2. The Revenue requested to hear the application alongside a fresh stay application by the assessee. The assessee argued that the application was not maintainable under section 254(2) of the Act as it pertained to an order passed under the proviso to section 254(2A). The Revenue sought modification of the expired order, which the assessee contended was unnecessary.

3. The Tribunal noted that both the initial stay order and the last extension had expired due to the lapse of time. As the orders had lost their force, there was no basis for modification or recall. The application by the Revenue was deemed infructuous as the orders had become obsolete, leading to the dismissal of the application.

4. The Tribunal emphasized that the Revenue's application had no merit as the orders it sought to modify were no longer in effect. The Tribunal clarified that the fresh stay application by the assessee would be considered independently, allowing both parties to present their arguments regarding the stay. The decision on the fresh stay application would be made based on the respective contentions of the parties.

5. Ultimately, the Tribunal dismissed the Revenue's application as it had become infructuous due to the expiration of the stay orders. The Tribunal emphasized that the fresh stay application by the assessee would be evaluated on its own merits, separate from the dismissed application by the Revenue.