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TMI Blog2019 (3) TMI 1350X X X X Extracts X X X X X X X X Extracts X X X X ..... ached the higher court seeking appropriate relief/remedy instead of filing a Misc. Application seeking review of the order passed by the Tribunal. - M.A. no.160/Mum./2019 (Arising out of ITA no.3183/Mum./2018) - - - Dated:- 22-3-2019 - Shri Saktijit Dey, Judicial Member And Shri Manoj Kumar Aggarwal, Accountant Member For the Assessee : Shri Madhur Agrawal For the Revenue : Shri Manish Kumar Singh ORDER PER SAKTIJIT DEY, J.M. By the captioned application, the Revenue seeks modification / variation of order dated 26th October 2018, passed by the Tribunal in S.A. no.484/Mum./2018. 2. Shri Manish Kumar Singh, the learned Departmental Representative, submitted, by a non speaking order dated 10th November 2017, the Tribunal has initially granted stay recovery of outstanding demand which has been extended twice on 4th May 2018 and 26th October 2018. He submitted, in the process the Tribunal has granted stay for more than 365 days which is in violation of the provision contained under section 254(2A) of the Income Tax Act, 1961 (for short the Act ). The learned Departmental Representative submitted, the Hon'ble Supreme Court in Asian Resurfacing of Roa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tstanding demand under Income Tax Act. He submitted, the Hon'ble Jurisdictional High Court in Oracle Financial Services Software Ltd. v/s DCIT, W.P. no.542/2019, judgment dated 28th February 2019, have taken note of the aforesaid decision of the Hon'ble Supreme Court in Asian Resurfacing of Road Agency Pvt. Ltd. Ors. (supra) and held that the observation of the Hon'ble Supreme Court therein cannot be imported to matters relating to grant of stay of demand under the Income Tax Act, 1961. As regards the contention of the learned Departmental Representative that initially the stay was granted by a non speaking order, the learned Authorised Representative submitted, the first stay order was passed on 10th November 2017 and the validity of the said stay order has ended after expiry of six months. He submitted, thereafter the Bench having examined the prima facie case and balance of convenience has extended stay on two occasions. He submitted, sincethe last stay order passed by the Tribunal is still in operation, the Department cannot seek review of the order. He submitted, when the last stay order was passed the Department never made the submissions now made before the Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .A. no.286/Mum./2018, dated 26th October 2018 and not the first stay order passed by the Tribunal in S.A. no.474/Mum./2017, dated 10th November 2017. Therefore, the contention of the learned Departmental Representative at this late stage that the first stay order passed by the Tribunal is a non speaking one cannot be accepted. As regards the contention of the learned Departmental Representative that as per the decision of the Hon'ble Supreme Court in Dunlop India Ltd. (supra) that while granting stay prima facie case is not the only criteria and public interest is also to be seen, we may observe, the ratio laid down in Dunlop India Ltd. (supra) is on the basis of its own facts, hence, cannot be made applicable to the present case. In any case of the matter, in assessee s case the Tribunal has not granted absolute stay but has granted conditional stay of recovery of outstanding demand subject to payment of ` 3 crore. There is no dispute that the assessee has complied to the aforesaid direction. Keeping in view the aforesaid fact, the Tribunal has extended stay subsequently, since there was no change in circumstances on the basis of which stay was granted to the assessee initiall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Department s plea that as per the decision of the Hon'ble Supreme Court in Asian Resurfacing of Road Agency Pvt. Ltd. Ors. (supra), stay of recovery of demand cannot be granted for more than six months is accepted, the third proviso to section 254(2A) of the Act will become otiose. 7. Now, reverting back to the issue whether the Tribunal can grant stay recovery of demand beyond the period of 365 days, the issue has passed judicial scrutiny on a number of occasions. The Hon ble Delhi High Court in Pepsi Foods Pvt. Ltd. (supra), after taking note of the amendment brought to the third proviso to section 254(2A) by Finance Act, 2008, w.e.f. 1st April 2008, has held that the Tribunal has power to grant stay for a period exceeding 365 days if the delay in disposal of the appeal is not attributable to the assessee. Following the aforesaid decision of the Hon'ble Delhi High Court, the Hon'ble Jurisdictional High Court in Tata Teleservices (Maharashtra) Ltd. (supra), held that the Tribunal has power to grant stay beyond a period of 365 days. Though, it may be a fact that the delay in disposal of corresponding appeal may not be attributable to the Department, at the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the appeal for A.Y. 2009-10 was head on that very day and the order is reserved and awaited as informed by the learned counsel for the assessee. We have gone through the decision of the Hon'ble Delhi High Court in the case Pepsi Food (P) Ltd. (supra) and conscious of the fact that the Hon'ble Delhi High Court has struck down the addition of expression by virtue of Finance Act, 2008 by holding the same as violative of non-discriminatory clause of Article 14 of the Constitution of India. The said expression was introduced by Finance Act, 2008 and the expression was that, even if the delay in disposing of the appeal is not attributable to the assessee , the same was struck down and this was further interpreted by the Hon'ble Bombay High Court in the case of Narang Overseas (P) Ltd. (supra). As regard the extension of stay beyond 365 days the Hon'ble Bombay High Court has categorically considered this decision in the case of Tata Teleservices (Maharashtra) Ltd. (supra) and held that this court (Hon'ble Bombay High Court) has consistently taken a view that the Tribunal has powers to extend stay even after substitution of 3rd proviso to Section 254(2A) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t waiting for any other intimation unless express order extending stay is produced. 37. The High Courts may also issue instructions to this effect and monitor the same so that civil or criminal proceedings do not remain pending for unduly period at the trial stage. This was also confronted to the learned Sr. D.R., where they have raised the issue of exceeding 365 days before the Tribunal at the time of extension of the say vide order dated 04.12.2018, the learned Sr. D.R. could not reply to the same. We noted that this judgement of Hon'ble Supreme Court will not help the Revenue for the reason that even the Legislature in this provision of Section 254(2A) introduced third proviso vide Finance Act, 2008 and allowed the period for granting of stay not exceeding 365 days in normal circumstances. Hence the Legislature was conscious of the fact that there are circumstances where stay has to be granted beyond six months as the facts requires in the exceptional cases. We have gone through the said order and noticed that no such plea was placed before the Tribunal at the time of hearing or from record we could not trace such arguments or plea. Hence taking into consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
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