9911796707
TMI Blog2021 (10) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... o demand. Therefore, if 253(7) is invoked the question as to whether ITAT can stay the Revisional order becomes a matter of debate. In the instant case, I deem it appropriate to leave this debate open. There is a specific provision namely sub-section (7) of Section 253 read with proviso to Sub-Section 2A of Section 254, the scenario or the obtaining legal position is completely different. This Court is also informed that this proposition/principle i.e., proposition that 'absent demand an appellant cannot move a stay petition under Section 253(7) before ITAT' is not blessed with authorities. As it involves a larger debate and in the light of the limited prayer that is sought for, I deem it appropriate to leave this question open a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cing platform i.e., virtual Court submits that the writ petitioner is in a predicament qua an appeal, which 'Income Tax Appellate Tribunal' [hereinafter 'ITAT' for the sake of brevity] 'B' Bench, Chennai is in seizin. This appeal bears No.IT- 2820/CHNY-2019 and it pertains to Assessment year 2014-2015. 3. Learned Senior Advocate submitted that an order dated 01.08.2019 made by third respondent in exercise of powers under Section 263 of 'Income-tax Act, 1961 (43 of 1961)' [hereinafter 'IT Act' for the sake of brevity] is under challenge before ITAT in aforementioned appeal. This order made by third respondent being an 'order dated 01.08.2019 under Section 263 of IT Act' shall hereinafter be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 25.06.2019, directing the writ petitioner to file response to the 263 pre-notice; that the writ petitioner carried it by way of intra-Court appeal i.e., WA.No.2081 of 2019 and a Hon'ble Division Bench on 05.07.2019 sustained the order of Hon'ble Single Judge; that thereafter, writ petitioner filed its submissions and also appeared before third respondent; that this culminated in Revisional order; that the Revisional order made by third respondent is appealable under Section 253 of IT Act; that the appeal lies to ITAT; that the aforementioned appeal came to be filed on 03.10.2019 and the same is pending; that the appeal was last scheduled to be listed on 23.09.2021 before ITAT 'B' Bench, but all the matters sched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain writ petition is being taken up and the same is being disposed of vide this order. 7. Limited prayer which learned Senior counsel makes is, if the Revisional order is kept in abeyance for a period of twelve(12) weeks from today i.e., upto 15.12.2021, the appeal before ITAT can be heard out and that will give a quietus to the entire matter. This is the limited prayer that has been made before me today. 8. Learned Revenue counsel, in response to the above submission, responded by saying that the writ petitioner has not chosen to file a stay petition before ITAT and not having chosen to do so it cannot now seek this limited prayer. 9. The entire matter now turns on whether the writ petitioner should have moved a stay petition. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts. Balance of convenience obviously ennures to the benefit of the writ petitioner as if the second respondent pursuant to aforementioned notice dated 15.09.2021, which was issued pending appeal before ITAT, concludes the proceedings, the entire appeal would become infructuous. The other facet of the matter is, second respondent's such conclusion cannot also be found fault (if it happens) as, as of today the Revisional order is operating and it is live. Therefore, assuming that an order is passed between now and 01.12.2021 by second respondent, it cannot be said to be lack of jurisdiction and the second respondent cannot be found fault with for making such an order. Thereafter, it will be a situation or an attempt to put the clock back ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d into service by learned Revenue counsel and alluded to supra) does not come to the aid of the Revenue in the case on hand. In 1969, there was no specific provision for stay. Sub-Section 7 of Section 253 was brought into statue book or in other words, it kicked in only on and from 01.10.1998 vide Finance Act, 1998. Likewise, Section 254(2A) and the proviso therein kicked in only in 2007. Therefore, M.K.Mohamad Kunhi 's case was rendered by Hon'ble Supreme Court at a point of time when there was no specific provision for stay qua ITAT in a appeal. Now that there is a specific provision namely sub-section (7) of Section 253 read with proviso to Sub-Section 2A of Section 254, the scenario or the obtaining legal position is comple ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
