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TMI Blog2017 (11) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... versed by the higher appellate authority or reviewed by its own, the orders passed shall hold the field and shall be binding on both the parties. Even on the proposed action to file rectification application before this Tribunal, it is hypothetical situation since the appellant had not yet filed any Miscellaneous Petition before this Tribunal. Even assuming that any such petition is filed, scope and ambit of all such applications is very limited and having regard to the decision of the Hon’ble jurisdictional High Court in the case of CIT v. McDowell & Co. Ltd. [2004 (3) TMI 41 - KARNATAKA High Court] in proceeding u/s 254(2), the Tribunal is not empowered to change the final outcome of the appeal. Thus having regard to the above legal po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised in earlier years confirmed by this Tribunal. On the other hand, learned Departmental Representative vehemently opposed the stay of demand in dispute as the issue in appeal is covered against the assessee-company by orders of this Tribunal for earlier years. 3. We heard rival submissions and perused the material on record. The assessee-company is seeking extension of stay of demand of ₹ 59,42,20,422/-. This demand had arisen on account of treating the payment made by the assessee-company to Google Ireland Ltd., as payment in the nature of royalty both under the provisions of domestic law as well as under DTAA between India and Ireland. Admittedly, this issue is covered against the assessee by recent orders of this Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said that there is prima facie case in favour of assessee. The Hon ble Apex Court, in the case of Asstt. Collector of Central Excise v. Dunlop India Ltd. [1985] 154 ITR 172 laid down the following three para meters to be taken into consideration at the time of grant of stay of demand by the appellate authorities: i. Existence of prima facie case ii. Financial hardship, and iii. Irreparable injury and balance of convenience. The Hon ble Supreme Court held as follows in para.6: 6....All this is not to say that interim orders may never be made against public authorities. There are, of course, cases which demand that interim orders should be made in the interests of justice. Where gross violations of the law and injustices are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders as was done by the High Court. There was no question of any balance of convenience being in favour of the respondent- company. The balance of convenience was certainly in favour of the Government of India. Governments are not run on mere bank guarantees. We notice that very often some Courts act as if furnishing a bank guarantee would meet the ends of justice. No Governmental business or for that matter no business of any kind can be run on mere bank guarantees. Liquid cash is necessary for the running of a Government as indeed any other enterprise. We consider that where matter of public revenue are concerned, it is of utmost importance to realize that interim orders ought not to be granted merely because a prima facie case has been s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wered to change the final outcome of the appeal. The relevant paragraph of the judgment is reproduced below: 9. We have given our anxious consideration to the issue. Section 35(1)(e) provides that with a view to rectifying any mistake apparent from the record, the Tribunal may amend any order passed by it under section 24. Sub-section (5) of section 35 provides that where an amendment is made under section 35, an order shall be passed in writing by the Tribunal. The power vested in the Tribunal, by section 35, is only to amend the order, to rectify any mistake apparent from the record and not to review its order. Section 35 also clearly states the mistake should be rectified by amending the original order. Therefore, rectification pres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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