Akshay Gupta, Delhi V. ACIT, Central circle-7, New Delhi

ITA 1112/DEL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0592 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 12-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Application of stay; Extension of stay
• Section: 80IB

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI , ' '' ' ' '' ' ' '' ' ' '' ' $ $$ $%&% %&% %&% %&% ' ' ' ' BEFORE MS. SUSHMA CHOWLA, JM & DR.B.R.R.KUMAR, AM () () () () ' '' ' /S.A.NOS.1109 TO 1111/DEL/2019 IN ' '' ' / ITA NOS.2681, 2680, 2682/DEL/2012 ** ** ** ** / ASSESSMENT YEARS 2009-10, 2008-09, 2008-09 VEDANTA LTD. (SUCCESSOR TO CAIRN INDIA LTD.), (ERSTWHILE KNOWN AS CAIRN ENERGY GUJARAT B.V.), CORE-6, 3 RD FLOOR, SCOPE COMPLEX, 7-LODHI ROAD, NEW DELHI-110003. PAN-AACCC8799D .......... (+ /APPELLANT VS THE ADIT (INTL. TAXATION), AHMEDABAD. . ,-(+ / RESPONDENT () () () () ' '' ' /S.A.NOS.1112 TO 1113/DEL/2019 IN ' '' ' / ITA NOS.2683 TO 2684/DEL/2012 ** ** ** ** / ASSESSMENT YEARS 2009-10, 2008-09 VEDANTA LTD. (SUCCESSOR TO CAIRN INDIA LTD.), (ERSTWHILE KNOWN AS CAIRN ENERGY GUJARAT B.V.), CORE-6, 3 RD FLOOR, SCOPE COMPLEX, 7-LODHI ROAD, NEW DELHI-110003. PAN-AACCC8799D .......... (+ /APPELLANT VS THE ACIT, CIRCLE-26(1), NEW DELHI. . ,-(+ / RESPONDENT (+./% / APPELLANT BY : KANCHAN KAUSHAL, CA ,-(+./% / RESPONDENT BY : PRADEEP SINGH GAUTAM, SR.DR 2 .01& / DATE OF HEARING : 24.12.2019 23.01& / DATE OF PRONOUNCEMENT: 24 .12.2019 % % % % / ORDER PER SUSHMA CHOWLA, JM: THIS BUNCH OF STAY APPLICATIONS RELATING TO THREE D IFFERENT APPLICANTS WHICH HAVE MERGED WITH M/S. VEDANTA LTD, THE STAY A PPLICATIONS BEFORE US ARE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY TH IS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. THE APPLICANT BEFORE US HAS MOVED AN APPLICATION FOR GRANT OF EXTENSION OF STAY AGAINST THE RECOVERY OF OUTSTANDI NG DEMAND TOTALING TO RS.219 CRORES. THE CASE OF THE APPLICANT BEFORE US IS THAT MAJOR DEMAND OUTSTANDING AMOUNTING TO RS.202 CRORES, HAD BEEN CR EATED ON ACCOUNT OF DISALLOWANCE MADE U/S 80IB(9) OF THE INCOME TAX ACT , 1961 (IN SHORT ACT) AND ADJUSTMENT MADE BY THE TPO ON ACCOUNT OF LOAN W RITTEN OFF. IN THE ORDER GRANTING STAY TO THE APPLICATION, THE AHMEDAB AD BENCH OF THE TRIBUNAL VIDE ORDER DATED 21.12.2012 DIRECTED THE A PPLICANT TO DEPOSIT RS.25 CRORES. VIDE SEPARATE ORDER DATED 14.06.2013 , THE TRIBUNAL FURTHER DIRECTED APPLICANT TO PAY RS.5 CRORES AGAINST THE O UTSTANDING DEMAND. THE APPLICANT ALSO POINTED OUT THAT CONSEQUENT THERETO, THE APPEALS OF THE APPLICANT WERE HEARD ON NUMEROUS OCCASIONS, BUT THE SAME COULD NOT BE FINALISED. IT IS POINTED OUT BY THE LD.AR FOR THE APPLICANT THAT THE ISSUE WAS DECIDED IN FAVOUR OF THE APPLICANT BY THE AHMEDABAD BENCH OF THE TRIBUNAL 3 IN NIKO RESOURCES LTD. IN ITA NO.661/AHD/2005 & 789 /AHD/2005 ORDER DATED 29.02.2008. THEREAFTER, THE HONBLE GUJARAT HIGH COURT PASSED DECISION IN FAVOUR OF THE APPLICANT VIDE JUDGEMENT REPORTED IN NIKO RESOURCES LTD. VS UNION OF INDIA 374 ITR 369 (GUJAR AT). DURING THE COURSE OF HEARING OF QUANTUM APPEALS BEFORE THE AHMEDABAD BENCH OF THE TRIBUNAL, THE REVENUE FILED AN ADJOURNMENT APPLICAT ION SIGNED BY PR. CHIEF CIT, GUJARAT MENTIONING THAT THE JUDGEMENT OF THE H ONBLE GUJARAT HIGH COURT WAS SUBJECT MATTER OF CHALLENGE BEFORE THE HO NBLE SUPREME COURT. THE HONBLE APEX COURT VIDE ORDER DATED 20.11.2015 RESTRAINED THE HONBLE HIGH COURT NOT TO FINALISE THE PENDING APPEALS. TH E PR. CHIEF CIT, GUJARAT THUS MADE AN APPLICATION THAT THE APPEALS BEFORE TH E TRIBUNAL SHOULD BE ADJOURNED SINE DIE. THE TRIBUNAL VIDE ORDER DATED 17.01.2017 PLACED AT PAGES 31 TO 34 OF THE PAPER BOOK, IN VIEW THEREOF A DJOURNED THE QUANTUM APPEAL SINE DIE . THE APPLICANT CHALLENGED THE ORDER PASSED BY THE TRIBUNAL BEFORE THE HONBLE HIGH COURT AND VIDE ORDER DATED 01.08.2017, THE DIRECTIONS OF THE TRIBUNAL TO ADJOURN THE APPEAL SINE DIE WERE ACCEPTED. SUBSEQUENT THERETO SINCE THE ENTITIES HAD MERGED WI TH VEDANTA LTD., THE MATTERS WERE DIRECTED TO BE PLACED BEFORE THE HONB LE PRESIDENT, ITAT FOR TRANSFERRING THE APPEALS TO THE DELHI BENCHES AND T HE SAME WERE TRANSFERRED VIDE ORDER DATED 11.05.2018. THE DELHI BENCHES OF THE TRIBUNAL VIDE ORDER DATED 12.03.2018 IN VIEW OF THE DIRECTIO NS OF THE AHMEDABAD BENCH ADJOURNED THE MATTER SINE DIE . TAKING COGNIZANCE OF THE SAID SITUATION, THE STAY APPLICATIONS WERE ALLOWED BY TH E DELHI BENCHES OF THE 4 TRIBUNAL FROM TIME TO TIME AND THE LAST STAY ORDER WAS PASSED ON 28.06.2019. THE PRESENT STAY APPLICATION IS MOVED BEFORE THE TRIBUNAL FOR GRANTING EXTENSION OF STAY AGAINST THE RECOVERY OF THE BALANCE OUTSTANDING DEMAND. 3. THE LD.DR FOR THE REVENUE FAIRLY POINTED OUT THA T SUITABLE ACTION MAY BE TAKEN IN THE CASE. 4. ON PERUSAL OF THE RECORD AND AFTER HEARING BOTH THE AUTHORIZED REPRESENTATIVES, WE ARE OF THE VIEW THAT SINCE HEA RING OF THE QUANTUM APPEALS HAS BEEN ADJOURNED SINE DIE CONSEQUENT TO THE APPLICATION MOVED BY PR. CHIEF CIT, GUJARAT, WHERE THE APPEALS WERE P ENDING EARLIER, AS THE VALIDITY OF THE SECTION 80IB(9) OF THE ACT IS CHALL ENGED BEFORE THE HONBLE SUPREME COURT AND THE SAME IS PENDING. WE ALSO FIN D THAT EVEN THE HONBLE GUJARAT HIGH COURT VIDE ORDER DATED 01.08.2017 HAD HELD AS UNDER:- 15 . WE ARE CONSCIOUS THAT THE ORDER OF THE SUPRE ME COURT DOES NOT TAKE WITHIN ITS FOLD ANY PENDING APPEAL BEFORE THE TRIBUNAL. ST RICTLY SPEAKING THEREFORE COUNSEL FOR THE PETITIONER MAY BE CORRECT IN CONTENDING THA T THERE IS NO STAY AGAINST THE TRIBUNAL PROCEEDING FURTHER IN SUCH TAX APPEALS. HO WEVER, IN THE PRESENT CASE, IT IS NOT THE QUESTION OF THE LEGALITY OF POWER ON PART O F THE TRIBUNAL, BUT PROPRIETY IN PROCEEDING OR NOT PROCEEDING WITH THE APPEALS. WHEN ADMITTEDLY ONE OF THE ISSUES INVOLVED IN SUCH TAX APPEALS IS OF THE EFFECT OF CL AUSE (IV) OF NEWLY SUBSTITUTED SUBSECTION (9) OF SECTION 80IB OF THE ACT AND CONSEQ UENTLY, : HE RATIO LAID DOWN BY THE HIGH COURT IN CASE OF NIKO RESOURCES LTD. (SUPRA ), THE TRIBUNAL CANNOT BE FAULTED FOR DECIDING NOT TO PROCEED FURTHER WITH TH E BUNCH OF APPEALS TILL THE SUPREME COURT FINALLY CLEARED THE ISSUES. WE SEE NO IMPROPRIETY OR LEGAL ERROR IN THE TRIBUNAL CHOOSING THIS OPTION. 5 5. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WHER E THE DISPOSAL OF THE APPEALS HAS BEEN STAYED SINE DIE, THE APPLICANT IS ENTITLED TO GRANT OF EXTENSION OF STAY AS FAR AS RECOVERY OF OUTSTANDING DEMAND IS CONCERNED. ACCORDINGLY, WE HOLD SO. THE STAY IS GRANTED FOR F URTHER PERIOD OF 180 DAYS OR TILL THE DISPOSAL OF APPEAL, WHICHEVER IS EARLIE R. 6. IN THE RESULT, ALL THE STAY APPLICATIONS FILED BY THE APPLICANT ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 24.12.2019 . SD/- SD/- (B.R.R.KUMAR) (SUSHMA CHOWLA ) %& %& %& %& /ACCOUNTANT MEMBER /JUDICIAL MEMBER / DATED : 24 TH DECEMBER, 2019 . * AMIT KUMAR * %.,056%507 COPY OF THE ORDER IS FORWARDED TO : 1. (+ / THE APPELLANT 2. ,-(+ / THE RESPONDENT 3. 8 9 : / THE CIT(A) 4. ; 8 / THE PR. CIT 5. 6. 5<),0 $ $ / DR, ITAT, DELHI )*=7 GUARD FILE. % % % % / BY ORDER , -50,0 // TRUE COPY // ?@A , $ ASSISTANT REGISTRAR, ITAT, DELHI