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TMI Blog2016 (4) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... ce is made to the facts as appearing in Special Civil Application No.2577 of 2016. The respondent - assessee filed his return of income for assessment year 2007-08 declaring total income of Rs. 96,910/-. The Assessing Officer framed assessment under section 143(3) read with section 153C of the Income Tax Act, 1961 (hereinafter referred to as "the Act") on 28.12.2011 assessing the total income of the assessee at Rs. 57,58,111/- as against the returned income. The assessee carried the matter in appeal before the Commissioner of Income Tax (Appeals), who by order dated 19.04.2013, confirmed the demand. Being aggrieved, the assessee carried the matter in further appeal before the Tribunal in ITA (SS) A No.258/Ahd/2013. The assessee also preferred Stay Petition No.64/Ahd/2014 in the said tax appeal before the Tribunal. In the other two petitions, the respondent-assessee filed identical tax appeals for assessment years 2008-09 and 2010-11 and all the three stay petitions were decided by a common order dated 13.08.2014 of the Tribunal whereby, the stay against the demand was granted in favour of the assessee. While granting stay of the outstanding demand of Rs. 1,80,50,640/-, the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within 365 days, it is not permissible for the Tribunal to extend the stay after the expiry of such period even if the delay is not attributable to the assessee. It was submitted that the impugned order passed by the Tribunal extending the stay beyond a period of 365 days is, therefore, in clear contravention of the mandatory provisions of the third proviso to sub-section (2A) of section 254 of the Act inasmuch as the Tribunal has no power to stay the demand beyond a period of 365 days even if the delay is not attributable to the assessee. It was, accordingly, urged that the impugned order being erroneous, illegal and without jurisdiction, deserves to be quashed and set aside. 5. Opposing the petitions, Mr. S. N. Divatia, learned advocate for the respondent - assessee submitted that the controversy involved in the present case is no longer res integra, inasmuch as, the same stands concluded by a decision of this court in the case of Deputy Commissioner of Income Tax v. Vodafone Essar Gujarat Ltd., 376 ITR 23 (Guj.), wherein the court has, while interpreting the provisions of subsection (2A) of section 254 of the Act, held that it is true that as per the third proviso to section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal has noted that the assessee had complied with the condition precedent for payment of the disputed tax demand as directed by it and further that the appeal of the assessee had not been disposed of and the non-disposal of appeal is not attributable to the assessee. It was submitted that, therefore, the Tribunal has duly applied its mind to the facts of the present case and has found that the delay in deciding the appeal is not attributable to the assessee. Under the circumstances, this case is squarely covered by the above decision of this court and hence, there is no warrant for interference. 5.1 Reference was also made to the decision of this court in the case of Commissioner v. Small Industries Development Bank of India rendered in Tax Appeals No.341 of 2014 and allied matters wherein, the court, in the context of section 35C(2A) of the Central Excise Act, 1944, had adopted a similar view. Reliance was placed upon a decision of the Supreme Court in the case of Commissioner of Customs and Central Excise, Ahmedabad v. Kumar Cotton Mills Pvt. Ltd., (2005) 180 ELT 434 (SC), wherein the court in the context of similarly worded provisions of section 35C (2A) of the Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Appeal filed by the revenue against the order of this court in Deputy Commissioner of Income Tax v. Vodafone Essar Gujarat Ltd. (supra), whereby the delay in preferring the SLP has been condoned and notice has been issued. It was submitted that, therefore, the above decision of this court has not attained finality. 7. In the above backdrop, the sole controversy involved in these petitions is as to whether the Tribunal was justified in extending the stay of demand in favour of the assessee beyond the period prescribed under the third proviso to subsection (2A) of section 254 of the Act. While, from the language of the third proviso to sub-section (2A) of section 254 of the Act, it appears that the Tribunal has no power to extend the stay beyond a period of 365 days from the date when the initial stay was granted, this court in Deputy Commissioner of Income Tax v. Vodafone Essar Gujarat Ltd. (supra) wherein a similar controversy was involved, for the reasons detailed to paragraph 5 above, has held that the Tribunal has the power to extend the stay of demand beyond a period of 365 days. However, extension of stay of the demand beyond the total period of 365 days from the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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