2021 (4) TMI 903 - AT - Income Tax

Seeking extension of stay already granted - HELD THAT - SA filed by the assessee is for seeking extension of stay already granted by this Tribunal wherein this Tribunal had extended the stay for a period of 180 days from 07.10.2019 or till the disposal of the appeal by this Tribunal, whichever is earlier. Thereafter, the stay already granted was extended from time to time by this Tribunal pursuant to the blanket stay order passed by Hon ble Bombay High Court upto January 2021. Similarly, from the chronology of events given of the stay application preferred by the assessee, we find that the delay in non-disposal of the appeal was not due to the reason attributable to the assessee as appeals were adjourned from time to time either at the behest of the bench or at the request made by ld. Departmental Representative (DR). We find that total taxes paid by the assessee for this year is less than 20% of the total demand raised thereon ad hence the applicability of mandate of section 254(2A) comes into operation. We find that the ld. Authorized Representative (AR) made various propositions to drive home the point that amended proviso to section 254(2A) of the Act could be made applicable only for stay application filed for the first time after 01.04.2020 and the same cannot be made applicable for extension of stay. We find that the ld. DR had filed written submissions which were sent in email on 01.04.2021 wherein he had vehemently argued that the law mandates payment of 20% of the total demand as a pre-condition for granting stay of demand by the Tribunal after the amendment. This mandatory condition cannot be tinkered by the Tribunal in any circumstances. We find that this issue had already been considered by the co-ordinate bench of this Tribunal in the case of Bennett Coleman Company Ltd 2021 (4) TMI 840 - ITAT MUMBAI wherein held assessee has no fault for the delay in disposing of the pending appeals. Therefore, we are of the view that assessee deserves to be granted extension of stay for a period of 4 months and accordingly, we grant the same. Thus we find that the assessee is entitled for stay of demand even though it exceeds the period beyond the 365 days and we have already stated that the delay in non-disposal of the appeal is not attributable to the assessee. we are inclined to grant extension of stay in the instant case for a further period of 180 days or till the disposal of the appeal for this AY, whichever is earlier. The assessee is directed not to take any adjournment on the scheduled date of hearing except due to unavoidable or exceptional circumstances and co-operate in expeditious disposal of the appeal. Disallowance under section 14A - Once this disallowance under section 14A of the Act is ignored, the net result of other remaining additions would still only result in assessed loss and hence there is no requirement of payment of any taxes for this AY. On this reason itself, assessee is entitled for extension of stay. Even otherwise as already stated earlier, the facts for this AY are similar to facts before the stay application for AY 2010-11 and accordingly the decision rendered thereon by us hereinabove shall apply mutatis mutandis for this AY also. Accordingly, we are inclined to grant extension of stay for a period of 180 days or till the disposal of the appeal for this AY by this Tribunal, whichever is earlier. The assessee is directed not to take any adjournment on the scheduled date of hearing except due to unavoidable or exceptional circumstances and co-operate in expeditious disposal of the appeal. Depreciation on 3G Spectrum Fees - If the said disallowance is ignored, the net result of remaining additions would only result in assessed loss and hence no tax is per se payable for this AY. We find that assessee had made a prima facie case in its favour and accordingly we inclined to grant extension of stay for a further period of 180 days from today or till the disposal of the appeal by this Tribunal for this AY, whichever is earlier. The assessee is directed not to take any adjournment on the scheduled date of hearing except due to unavoidable or exceptional circumstances and co-operate in expeditious disposal of the appeal.

Summary

Issues:
1. Stay petition for AY 2009-10.
2. Stay petition for AY 2010-11.
3. Stay petition for AY 2011-12.
4. Stay application for AY 2013-14.

Stay petition for AY 2009-10:
The assessee sought an extension of stay already granted by the Tribunal. The delay in appeal disposal was not due to the assessee. The Tribunal extended the stay for 180 days or till appeal disposal. The assessee was directed not to seek adjournments except for exceptional circumstances.

Stay petition for AY 2010-11:
Similar to the previous year, the assessee requested an extension of stay. The Tribunal noted the delay was not due to the assessee and granted an extension. The Tribunal considered the amended proviso to section 254(2A) and allowed the extension of stay beyond 365 days.

Stay petition for AY 2011-12:
The facts for this AY were similar to the previous year. The assessee paid less than 20% of the total demands. The major addition by the AO was a disallowance under section 14A, which the assessee contested successfully. The Tribunal granted an extension of stay for 180 days or till appeal disposal.

Stay application for AY 2013-14:
The Tribunal granted an extension of stay based on a co-ordinate bench decision regarding the issue of Depreciation on 3G Spectrum Fees. The Tribunal considered the disallowance made by the AO and granted an extension of stay for 180 days or till appeal disposal.

In all cases, the Tribunal considered the merits of the applications, the delay in appeal disposal not attributable to the assessee, and granted extensions of stay accordingly. The Tribunal emphasized the need for the assessee to cooperate in the expeditious disposal of the appeals.

This detailed analysis covers the issues involved in each stay petition and the Tribunal's decisions regarding the extension of stay for the respective Assessment Years.