9911796707
TMI Blog2015 (2) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... f any The subject penalty proceedings, sought to be stayed, has been initiated by the Ld. CIT(A) himself in pursuance of enhancements of income made by her office in the appellate order dated 14/10/2014. Hence the question of filing an appeal before Ld. CIT(A) in the context of penalty proceedings does not arise. 3 The exact amount of tax, interest, penalty, fine estate duty of any other sum demanded as the case may be and the amount outstanding. At this stage, the appellant is seeking direction from the Hon'ble ITAT for stay of penalty proceedings initiated by the Ld. CiT(A). No demand on account of penalty has been raised till date. 4 The date of filing the appeal before the Tribunal and its number, if any Appeal filed on: December 10,2014 Appeal No.: 3297/Ahd/2014 5 Whether any application for stay was made to the Revenue authorities concerned and , if so, the result thereof (copies of correspondence, if any, to be attached) Yes, the application for stay of penalty proceedings was moved before the Ld. CIT(A). A copy of the application filed before the Ld. CIT(A) is enclosed as Annexure B. Based our discussion we understand that the Ld. CIT(A) does not intend to k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al is pending before the Tribunal for disposal. 4. In the light of the above background, Ld. AR, Shri S.N. Soparkar, has referred an order of ITAT "C" Bench Ahmedabad pronounced in the case of GE India Industrial Pvt. Ltd said application No. 62/Ahd20012 order dated 4th January, 2013 wherein it was held as under:- "5. Ld. D.R., on the other hand, placing reliance on the decision of Hon'ble Supreme Court in the case of Commissioner of Income Tax vs. Manick Sons submitted that Tribunal cannot assume power which are inconsistent with the express provisions of the Act or its scheme and therefore prayed that no direction for staying the penalty proceedings initiated by Id, C1T(A) may kindly be issued. He, however, did not make any submission regarding the merits of the case. 6. After hearing both the parties, perusing the record and the case laws relied by both the parties we find that in this case penalty proceedings have been initiated by Id. CIT(A) pursuant to enhancement of income made by him vide his order dated 17.07.2012. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; "5.3 The issue raised in the present special civil application with respect to staying of penalty proceedings by the Income-tax Appellate Tribunal during the pendency of the appeal is also required to be considered from another angle. Even section 275(1)(a) of the Income-tax Act provides that in a case where the relevant assessment order or the other order is the subject matter of an appeal to the Commissioner (Appeals) under section 246 or under section 246A or an appeal to the Appellate Tribunal under section 253 of the Income-tax Act. no order of imposing penalty can be gassed after the expiry of the financial year in which the proceeding, in course of which action for imposition of penalty has been initiated, are completed, or six months from the end of the month in which the order of the Commissioner (Appeals), or, as the case may be, the Appellate Tribunal is received by the Chief Commissioner or the Commissioner, whichever expires later. Meaning thereby, after the order passed by the appellate Tribunal, there will be a further period of six months available for Imposing the penalty from the end of the month in which the order of the Appellate Tribunal is received. Meanin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue advantage by delaying the appeal proceedings. 6. The argument of Ld. AR is that if a judicial authority has jurisdiction to grant relief by pronouncing a "final order" then in that proceedings such judicial authority also has inherent power to pass an "interim order" to grant interim relief. Therefore Ld. AR has concluded that in a situation when an appeal in respect of the quantum addition has already been filed before this Tribunal the penalty proceeding which are directly connected with the addition; then should be stayed to avoid multiplicity of proceedings. 7. From the side of the revenue, Ld DR Shri Dinesh Singh has strongly opposed the stay of penalty proceedings on the ground that the petitioner is seeking a premature redressal. So far no penalty has been imposed, therefore, no demand has been raised. According to Ld. DR, the petitioner can seek for stay of demand when raised after the imposition of the penalty. He has pleaded that even in a worst situation when in this case a penalty shall be imposed by Ld. CIT(A) then also after filing an appeal before the Tribunal against the imposition of the penalty, this petitioner at that time shall have remedy to seek stay of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s raised before us is squarely covered by the decision of G.E. India Industrial (supra) but for the sake of completeness and to answer the questions raised in the pleadings from both the sides, we deem it proper to deal but in a cryptic manner. As far as the powers assigned to us is concerned, Section 254(1) says that the appellate Tribunal may after giving both the parties to the appeal an opportunity of being heard pass "such orders" thereon as it "thinks fit". So, the powers are considerably wide. The interpretation of this section is made available in the judgment passed by the Hon'ble jurisdictional High Court in the precedent cited above. 9.1 We have also noted that as per section 254(2A) First Proviso the Tribunal can pass an order of stay in any proceedings relating to an appeal filed. The word "stay" of recovery proceedings is missing in this First Proviso. However, we have found that a rule is prescribed in Appellate Tribunal Rule, 1963 i.e. Rule 35A which says that an application for "stay of recovery of demand of tax", interest, penalty, fine etc can be moved by an appellant before the Bench hearing the appeal. In sub-rule (2) of Rule 35A it is prescribed that every su ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
