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TMI Blog2019 (8) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... note of its earlier orders wherein, the Tribunal has specifically recorded that the assessee has not shown any financial difficulty, nor the assessee has made out a prima facie case. Tribunal could not have directed recovery of tax from Mr.Darmendra Bafna, who was not a party to the proceedings before the Tribunal. If for any reason, the Tribunal was of the view that the debt has to be recovered from a third party, it should have issued a notice to the third party, heard the third party and then taken a decision. Thus, the procedure adopted by the Tribunal is wholly unknown to law and is clearly illegal. To say the least, the order is utterly perverse.Tribunal in the impugned order took a different stand and directed recovery of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Income Tax Appellate Tribunal 'C' Bench, Chennai (for brevity, the Tribunal ), for the assessment year 2006-07. 2.The Revenue has raised the following substantial questions of law:- i. Whether on the facts and in the circumstances of the case, the ITAT was right in law in granting stay of recovery, till the debt due to the assessee from his creditor is fully recovered by the department in satisfaction of its arrear demand, which would have the effect of the ITAT granting stay exceeding 180 days at a stretch, is in violation of the first proviso to Sec.254(2A) of the I.T.Act? ii. Whether the Appellate Tribunal was right in directing the department to recover its dues from Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I.T.A.Nos.2928, 2929, 2930 and 2931/Chny/2017, for the assessment years 2006-07, 2006-07, 2006-07 and 2012-13 respectively, the Revenue has filed an appeal before this Court against the order in I.T.A.No.2928/Chny/2017 and the same is in the process of being numbered. Insofar as the other appeals are concerned, those pertain to the orders passed in the stay petitions. 6.In the light of the above submission, nothing further survives to be adjudicated in this appeal rather the appeal itself has become infructuous. Under normal circumstances, we would have closed the appeal, but the manner in which the Tribunal has passed the impugned order does not convince us to do so. 7.To be noted that the order impugned, befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed tax liability, nor the assessee has shown a prima facie case in their favour. 10.The cardinal principle that should have been borne in mind by the Tribunal while granting an interim order is that the assessee should have made out a prima facie case; the balance of convenience should have been in his favour; and if stay is not granted in favour of the assessee, he will be put to irreparable hardship. Unfortunately, the Tribunal did not address any of these grounds, which are mandatorily required to be addressed, while granting an interim order. That apart, the Tribunal did not take note of its earlier orders wherein, the Tribunal has specifically recorded that the assessee has not shown any financial difficulty, nor the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand against the assessee directing that there can be no enforcement or encashment of the assets of the assessee by the Department. 13.As rightly contended by Mr.T.R.Senthil Kumar, this direction issued by the Tribunal goes beyond the time limit prescribed under the first proviso in Section 254(2A). This will also make the impugned order as illegal. As we have observed that the appeal has become infructuous, but nevertheless, the impugned order can never be treated as a precedent, nor such procedure can be resorted to by the Tribunal in any other matter. 14.With the above observations, this appeal stands closed and the substantial questions of law are left open. No costs. - - TaxTMI - TMITax - Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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