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TMI Blog2016 (4) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 750/Del/2015, - - - Dated:- 18-3-2016 - Diva Singh, Judicial Member and J.S.Reddy, Accountant Member G.C. Srivastava, Daksh Bhardwaj and Anubhav Jain, Advs. for the Appellant Ravi Jain, CIT DR for the Respondent ORDER Diva Singh, Judicial Member:- 1. The assessee has filed the present stay petition in ITA No. 750/Del/2015 pertaining to assessment year 2010-11. Extension of stay is sought which was originally granted by the ITAT for six months initially vide order dated 20.02.2015 in S.A. No. 67/10/2015. The said stay was further extended for another period of six months vide order dated 24.09.2015 in S.A. No. 442/Del/2015. Accordingly relying on the decision of the Jurisdictional High Court in the case of Pepsi Foods Pvt Ltd. vs. ACIT [2015] 376 ITR 87 (Del) extension of stay is sought on the grounds that the delay in disposal of appeal is not attributable to the assessee. 2. In support of the prayer, reliance is placed on the sequence of events of the Court proceedings summarized in page 5 of the stay petition. On considering the record of the Court proceedings in ITA No.750/Del/2015 it was found that the position as summarized in page 5 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the matter was not attributable to the applicant. A copy of the original constitution of the bench and of the adjournment application is enclosed as Annexure I and II respectively. 10. 07 January 2016: Appeal again got adjourned to 17 February 2016 as other stay matters were going on. 11. 17 February 2016: The matter was rescheduled to 29 February 2016 as one of the Hon'ble ITAT members had a conflict of interest with the legal counsel for the applicant's case. 12. 29 February 2016 : The Hon'ble bench directed the departmental representative (DR) to go through the submission filed by the applicant and the matter was adjourned to 22 March 2016. 4.1. As per Annexure enclosed it was submitted the original Constitution of the Bench on 14.12.2015 was as under:- Constitution of Benches from 14.12.2015 to 17.12.2015 Bench Court Room President/Vice President/Members I(1) 8 S/Shri R.S.Syal, AM and Kuldeep Singh, JM 4.2. The adjournment as per Annexure relied upon it was submitted had been moved in the following circumstances:- T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 254. Orders of Appellate Tribunal:- (1) 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. (2A) In every appeal, the Appellate Tribunal, where it is possible, may hear and decide such appeal within a period of four years from the end of the financial year in which such appeal is filed under sub-section (1) or sub-section 253:- Provided that the Appellate Tribunal may, after considering the merits of the application made by the assessee, pass an order of stay in any proceedings relating to an appeal filed under sub-section (1) of section 253, for a period not exceeding one hundred and eighty days from the date of such order and the Appellate Tribunal shall dispose of the appeal within the said period of stay specified in that order:- Provided further that where such appeal is not so disposed of within the said period of stay as specified in the order of stay, the Appellate Tribunal may, on an application made in this behalf by the assessee and on being satisfied that the delay in disposing of the appeal is not attributable to the assessee, extend the period of stay, or pass a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution of India the third proviso was struck down and the second proviso was read down. For readyreference, para 24 of the decision is reproduced hereunder:- 24. Furthermore, the petitioners are correct in their submission that unequals have been treated equally. Assessees who, after having obtained stay orders and by their conduct delay the appeal proceedings, have been treated in the same manner in which assessees, who have not, in any way, delayed the proceedings in the appeal. The two classes of assessees are distinct and cannot be clubbed together. This clubbing together has led to hostile discrimination against the assessees to whom the delay is not attributable. It is for this reason that we find that the insertion of the expression - 'even if the delay in disposing of the appeal is not attributable to the assessee'- by virtue of the Finance Act, 2008, violates the non-discrimination clause of Article 14 of the Constitution of India. The object that appeals should be heard expeditiously and that assessees should not misuse the stay orders granted in their favour by adopting delaying tactics is not at all achieved by the provision as it stands. On the contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Although that decision pertained to section 35C(2A) of the Central Excise Act, 1944, the provision under consideration was somewhat similar. It pertained to the waiver of predeposit at the stage of an appeal pending before the Central Excise Service Tax Appellate Tribunal. The provision indicated that the waiver would stand vacated after 180 days. In that context, the question arose, as to whether the second proviso to sub-section (2A) of section 35C was directory and that the Tribunal, in appropriate circumstances, could extend the period of stay beyond 180 days. While considering the said question, the Punjab and Haryana High Court held as under (page 117 of 22 GSTR):- Though the right of appeal is a creation of Statute and it can be exercised only subject to the conditions specified therein, but the conditions specified have to be in relation to the assessee as some thing which is required to be complied with by the assessee. But where the assessee has no control over the functioning of the Tribunal, then the provision of vacation of stay cannot be sustained. The assessee having preferred appeal and that Tribunal being satisfied that condition for dispensing with the pre- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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