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TMI Blog2013 (10) TMI 1178X X X X Extracts X X X X X X X X Extracts X X X X ..... instead proceeded in a ham-handed manner, to appropriate this amount. The order passed by the Tribunal, does not suffer from any error of jurisdiction or of law – Decided against the Revenue. Whether adjournment is sought by assessee – Held that:- A perusal of the Tribunal’s order reveals that counsel for the assessee brought it to the notice of the Tribunal that the appeal involves an issue relating to AMP, which is pending before a Special Bench, in the case of LG electronics. The Tribunal adjourned the case to 16.04.2013. The opinion recorded by the Tribunal that order dated 16.01.2013 does not record a request for an adjournment, at the behest of counsel for the assessee, cannot be faulted. The counsel for the assessee brought to the notice of the Tribunal that an appeal involving a similar issue is pending before a Special Bench. It was for the Tribunal to hear the appeal or adjourn the appeal. The Tribunal choose, instead, to adjourn the appeal as it could not be decided without decision of the reference. The order dated 16.01.2013 must, therefore, be read as the assessee bringing a fact to the notice of the Tribunal and the latter adjourning the case. The endeavour of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not exercise appellate or revisional powers. A perusal of the order reveals that the case was adjourned as counsel for the assessee contended that the appeal involves an issue, which is pending before a Special Bench, in the case of LG Electronics. The continuance of the stay order being dependent upon the assessee not seeking an adjournment, the adjournment of the appeal pursuant to a request made by counsel for the assessee violated this condition of the stay order. The revenue was, therefore, well within its right to call upon the respondent-assessee to pay the tax due. The Income Tax Appellate Tribunal has no jurisdiction to hold that the adjournment was granted suo-motto or that the Bench was obliged, on the principle of judicial discipline and judicial propriety, to adjourn the case. It is further submitted that the Income Tax Appellate Tribunal has proceeded to assume that it has jurisdiction to pass an order of refund by relying upon Section 151 of the CPC and judgments that are irrelevant. It is also contended that as the Income Tax Appellate Tribunal itself has held that action of the revenue is bonafide, there is no question of ordering refund or holding that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject of the notice was to meet targets placed upon revenue officers for collection of tax. A plea raised by the revenue that it was not aware of the fine print of order dated 13.12.2012 upto 22.03.2013, is a blatant misstatement. If the department was not aware of the fine print of the order, it would not have entertained the bank guarantee or accepted payment of tax. It is further submitted that the show cause notice dated 22.03.2013, does not allege that order dated 13.12.2012 has been vacated. The said plea was raised during the personal hearing. The assessee was, therefore, not put to statutory notice of the alleged vacation of the stay order. The notices refer to non admission of MAP proceedings, which are, admittedly, pending. It is further submitted that in case the revenue was of the opinion that the said order has been vacated, it was obliged to approach the Tribunal seeking clarification of order dated 16.01.2013. The failure of the revenue to adopt this course indicates malafides and an attempt to achieve targets set by the department. It is further argued that the Tribunal has not committed an error while holding that it is empowered to order refund, as Section 256 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding that on receipt of formal request for suspension of collection of outstanding tax in terms of the Treaty/MOU, the Assessing Officer is required to keep the tax in abeyance if the same has been admitted by the Indian Competent Authority. The appeal filed by the assessee against the order passed by the DCIT-II, Gurgaon, came up for consideration before the Income Tax Appellate Tribunal. Vide order dated 13.12.2012, a stay of the demand for a period of 180 days or disposal of the appeal or of the MAP application, whichever is earlier was granted. The conditional order dated 13.12.2012 reads as follows:- In consideration of the application of the assessee in the light of rival submissions and material on record, we grant of stay of recovery, subject to condition that assessee shall deposit Rs.2.50 crores on or before 21.12.2012 and shall furnish bank guarantee for the amount involved for which MAP application has been filed, on or before 31.12.2012, for a period of 180 days or disposal of the appeal/MAP application, whichever is earlier. However, assessee shall not seek any adjournment and get finalised the appeal fixed for hearing on 13.01.2013 or any subsequent date. In cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chartered Bank. The assessee filed an application under Section 151 of the Code of Civil Procedure, before the Income Tax Appellate Tribunal, for refund of the amount recovered by the revenue. The revenue raised a plea that as the stay order stood vacated, in view of adjournment, dated 16.01.2013, the Income Tax Appellate Tribunal has no jurisdiction to order refund. After a detailed perusal of the facts, the Income Tax Appellate Tribunal framed five questions for adjudication in the following terms:- a) Has the stay order of the Tribunal been flouted by the assessee; b) Has the stay order of the Tribunal been flouted by the department; c) If the answer to b) is yes then is the action of the department bonafide or malafide on facts; d) If the answer to b) is yes then does the Tribunal have the power to direct a refund; e) in case the answer to d) is yes, then what are the safeguards which can be ensured to protect the interest of the Revenue. The Income Tax Appellate Tribunal held that adjournment was granted by the Tribunal in confirmity with judicial discipline and judicial propriety as the appeal could not be decided in view of pendency of another appeal, relatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the stay order stands vacated, a stand that was vehemently urged before the Tribunal and is reiterated before us. The vacillating stand of the revenue clearly indicates a confused state of mind, apparently compelled by the need to achieve targets fixed by superiors of the department. We, therefore, find no reason to differ with the opinion recorded by the Tribunal, that as counsel for the assessee did not pray for an adjournment, the stay order did not stand vacated. The next plea relates to jurisdiction of the Tribunal to order refund of the amount appropriated by the revenue, during pendency of the appeal. The learned Tribunal has held that it is empowered, in view of nature of its jurisdiction, as well Section 151 CPC to order refund, as the stay order has not been vacated. The power to ensure that its orders are not violated during pendency of a lis are inherent in any Court or Tribunal. In fact it is the bounden duty of the Tribunal to ensure where its order is violated that the violation is adequately redressed and money appropriated, is restituted. If such a power is held not to be available to the Tribunal, its interim orders would be flouted with impunity. If, the rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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