Asst. Commissioner of Income tax Cir. 1(1), Panaji V. M/s. Goa State Co-Opp. Bank Ltd., Panaji

ITA 278/PAN/2013

• Counselvise Citation: 27824114 RSA 2013
• Duration Of Justice: 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-04-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 08-04-2014
• Assessment Year: 2010-2011
• Appeal Filed On: 03-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONAL SONKAVDE LD
• Assessee Lawyers: VENKATESH J SHENAI
• Keywords: Application of stay
• Section: 143(3); 246

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI P. K. BANSAL, HONBLE ACCOUNTANT MEMBER AND SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER ITA NO. 278 /PNJ/2013 (ASSESSMENT YEAR - 2010 - 11 ) THE ASSISTANT COMMISSIONER OF I NCOME TAX, CIRCLE - 1(1), PANAJI - GOA (APPELLANT) VS. M/S. GOA STATE CO - OPERATIVE BANK LTD., GROUND FLOOR, SAHAKAR SANKUL PATTO, PANAJI - GOA, 403001. PAN: AAAAT3364R (RESPONDENT) APPELLANT BY : SMT. SONAL SONKAVDE LD. DR. RESPONDENT BY : SHRI VENKATESH J. SHENAI, CA. DATE OF HEARING : 08 / 04/ 2014 DATE OF PRONO UNCEMENT : 17 /04/2014 O R D E R PER: D.T. GARASIA THIS APPEAL HAS BEEN FILED BY THE DEPARTMENT AGAINST THE O RDER OF CIT(A), BANGALORE, DATED 28 . 06. 2 013 FOR THE ASSESSMENT YEAR 2010 - 11 . 2. THE FOLLOWING GROUNDS ARE RAISED IN THIS APPEAL READ AS UNDER: THE LD. COMMISSIONER OF INCOME TAX (APPEAL), PANAJIS ORDER GRANTING THE STAY APPLICATION OF THE ASSESSE E IS OPPOSED TO LAW AND FACTS OF THE CASE ON THE FOLLOWING GROUNDS 1. THE LEARNED CIT(A) ERRED IN GRANTING STAY OF DEMAND, WHEN THE ASSESSEE HAS NOT FOLLOWED THE PROCEDURE OF HIERARCHY AND WITHOUT FILING STAY APPLICATION BEFORE JOINT COMMIS SIONER OF INCOME - TAX AND COMMISSIONER OF INCOME - TAX, HAS GONE DIRECTLY TO CIT(A) AND HIGH COURT. 2. T HE LEARNED CIT(A) ERRED IN GRANTING STAY IN NOT APPRECIATING THAT ALTERNATE REMEDY BEFORE OTHER AUTHORITIES IS AVAILABLE TO ASSESSEE AS PER PROVISIONS OF INCOME TAX ACT. 3. THE LD. CIT(A) IS ERRED IN GRANTING THE STAY ON THE ENTIRE DEMAND WITHOUT CONSIDERING THE CBDT INSTRUCTION VIDE NO. 1914 DATED 02.12.1993, WHEREIN IT CLEARLY 2 . ITA NO. 278/PNJ/2013(A.Y 2010 - 11) ACIT VS. M/S. GOA STATE CO - OPERATIVE BANK LTD., SAYS, MERE FILING AN APPEAL AGAINST THE ASSESSMENT ORDER WILL NOT BE SUFFICIENT REASON TO STAY THE RECOVERY OF DEMAND. 4. THE LD. CIT(A) IS ERRED IN GRANTING STAY ON THE ENTIRE DEMAND, WITHOUT CONSIDERING THE CRITERIA, WHERE AS THE CASE OF THE ASSESSE DOES NOT FALL UNDER ANY CRITERIA STIPULATED BY THE CBDT IN THE INSTRUCTION NO. 1914 DATED 02.12.199 3, FOR GRANTING STAY OF DEMAND. 5. THE LD. CIT(A) IS ERRED IN GRANTING STAY ON THE ENTIRE DEMAND, WITHOUT CONSIDERING THAT, THE AO HAS ALREADY CONSIDERED THE STAY APPLICATION OF THE ASSESSE AND GRANTED STAY OF 50% OF THE DEMAND TILL THE DECISION OF THE CIT (A) ON THE ISSUE RAISED IN THE ASSESSMENT. 6. THE LD. CIT(A) IS ERRED TO NOTE THAT THE ASSESSE IS A BANKING INSTITUTION, HAVING SUFFICIENT FUND/DEPOSIT WITH OTHER BANKING INSTITUTIONS IN THE FORM OF CURRENT DEPOSITS, FD5 AND SECURITIES AND ALSO, THE FACT T HAT THE LIABILITIES ARE MAINLY IN THE FORM OF RESERVES. 3. THE SHORT FACTS OF THE CASE ARE THAT THE ASSESSEE IS A CO - OPERATIVE BANK. THE ASSESSEE HAS FILED APPEAL AGAINST THE ASSESSMENT ORDER PASSED U/S. 143(3) BEFORE THE CIT(A), PANAJI. IN THE MEAN TIM E, WHILE THE ASSESSEE FILED APPLICATION FOR STAY OF DEMAND BEFORE THE AO, WHICH WAS REJECTED BY THE AO. THE ASSESSEE HAS FILED THE WRIT AGAINST THE ORDER OF THE AO BEFORE HONBLE HIGH COURT OF MUMBAI AT GOA AND THE HONBLE HIGH COURT HAS DIRECTED THE CIT(A ) TO DECIDE THE STAY APPLICATION OF THE ASSESSEE, HENCE, THE DEPARTMENT IS IN APPEAL BEFORE US. 4. THE MATTER CARRIED TO CIT(A) AND CIT(A) HAS STAYED THE DEMAND BY OBSERVING AS UNDER: I HAVE GONE THOUGH THE FACTS OF THIS CASE AND SUBMISSIONS OF THE LEARNED COUNSEL OF THE APPELLANT. I UNDERSTAND THAT THE APPELLANT BANK IS PASSING THROUGH A DIFFICULT FINANCIAL SITUATION AND RECOVERY OF DEMAND AT THIS STAGE MAY JEOPARDISE ITS DAY - TO - DAY FUNCTIONING. IN VIEW OF THE ABOVE FACTS, STAY IS GRANTED ON RECOVER Y OF DEMAND AMOUNTING TO RS. 6,55,12,350/ - FOR A.YR. 2010 - 11 TILL THE DISPOSAL OF QUANTUM APPEAL. THE A.O. IS DIRECTED NOT TO ENFORCE RECOVERY OF ABOVE MENTIONED DEMAND TILL THE DECISION OF THE QUANTUM APPEAL BY THE UN DERSIGNED, I.E. CIT(A), PANAJI. 5. W E HAVE HEARD THE RIVAL CONTENTION OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND FROM THE RECORD THAT ASSESSMENT WAS COMPLETED U/S. 143(3) ON 28.1.2013 . THE ASSESSEE WENT IN APPEAL BEFORE CIT(A). THE CIT(A) WAS NOT DISPOSI NG THE STAY APPLICATION WHICH WAS FILED BEFORE COMMISSIONER APPEAL. THEREFORE, WRIT NO. 201/2013 WAS FILED IN THE 3 . ITA NO. 278/PNJ/2013(A.Y 2010 - 11) ACIT VS. M/S. GOA STATE CO - OPERATIVE BANK LTD., HIGH COURT OF BOMBAY AT GOA. THE HIGH COURT HAS DIRECTED THE COMMISSIONER APPEAL TO DECIDE THE APPLICATION FOR STAY DATED 28.02.2013 WITHIN EI GHT WEEKS FROM THE DATE OF ORDER. THE CIT(A) HAS GRANTED THE STAY AS PER THE POWER OF CIT(A) U/S 220(6) OF THE INCOME TAX ACT. WE FIND THAT AS PER SECTION 220(6) IF THE APPEAL HAS PRESENTED BEFORE THE COMMISSIONER U/S. 246 [ OR SECTION 246A] THE A SSESSING O FFICER MAY , IN HIS DISCRETION AND SUBJECT TO SUCH CONDITION S AS HE MAY THINK FIT TO IMPOSE IN THE CIRCUMSTANCES OF THE CASE , TREAT THE ASSESSEE AS NOT BEING IN DEFAULT IN RESPECT OF AMOUNT IN DISPUTE IN THE APPEAL , EVEN THOUGH THE TIME FOR PA YMENT HAS EXP IRED , AS LONG AS SUCH APPEAL REMAINS UN DISPOSE D UP. WE FIND THAT IN THIS CASE THE ASSESSMENT WAS COMPLETED ON 28.02.2 013 AND THERE WAS DEMAND OF RS.6,55,12,350/ - WAS RAISED . THE ASSES SEE HAS FILED THE APPEAL BEFORE CIT(A) AND THE STAY APPLICATION FOR DEMAN D WAS FILED BEFORE AO WHICH WAS REJECTED. THE CIT(A) HAS GRANTED STAY. WE FIND THAT THE CIT(A) HAS DECIDED THIS STAY APPLICATION AS PER THE DIRECTION IN WRIT PETITION 201 OF 2013 BY OBSERVING AS UNDER. 5. IN OUR CONSIDERED OPINION, THE WRIT PETITION CAN BE CONVENIENTLY DISPOSED OF BY DIRECTING THE COMMISSIONER OF INCOME TAX (APPEALS) TO DECIDE THE APPLICATION FOR STAY DATED 28/02/2013 FILED BY THE PETITIONER EXPEDITIOUSLY. HE NCE, THE COMMISSIONER OF INCOME TAX(APPEALS) IS DIRECTED TO DECIDE THE APPLICATI ON FOR STAY DATED 28/ 02/2013 FILED BY THE PETITIONER EXPEDITIOUSLY AND IN ANY CASE, WITHIN A PERIOD OF EIGHT WEEKS FROM TODAY. 6. INTERIM PROTECTION GRANTED BY THIS COURT ON 19/03/2013 TO CONTINUE TILL THE DISPOSAL OF THE STAY APPLICATION. IN CASE ANY AD VERSE ORDER IS PASSED ON THE STAY APPLICATION OF THE PETITIONER, THE INTERIM PROTECTION GRANTED BY THIS COURT TO CONTINUE FOR A PERIOD OF TWO WEEKS THEREAFTER. 7. WRIT PETITION STANDS DISPOSED OF. WE FIND AS PER DIRECTION OF THE HONBLE HIGH COURT, THE CIT(A) HAS GRANTED STAY AS PER THE DIRECTION OF HONBLE HIGH COURT, THEREFORE, WE ARE OF THE VIEW THAT THE DECISION OF HONBLE HIGH COURT IS BINDING TO US ALSO. WE FIND THAT THE CIT(A) HAS NOT CONSIDER ED THE C BDT INSTRUCTION VID E NO. 1914 DATED 02.12.1993, WHEREIN IT CLEARLY SAYS , MERE FILING OF AN APPEAL AGAINST THE ASSESSMENT ORDER WILL NOT BE SUFFICIENT REASON TO STAY THE RECOVERY OF DEMAND. 4 . ITA NO. 278/PNJ/2013(A.Y 2010 - 11) ACIT VS. M/S. GOA STATE CO - OPERATIVE BANK LTD., WE FIND THAT IN THE CASE OF HAND , THE HONBLE HIGH COURT HAS GIVEN THE DIRECTION IN W RIT PETITION, THEREFORE, WE ARE OF THE VIEW THAT CIT(A) IS JUSTIFIED IN HIS ACTION AND OUR INTERFERENCE IS NOT REQUIRED. EVEN OTHERWISE U/S. 253 OF THE INCOME TAX ACT, THE ORDER PASSED BY THE CIT ( A) GRANTING THE STAY TO THE ASSESSEE IS NOT APPEALABLE BEFOR E THE TRIBUNAL AND ON THIS BASIS ALS O THE APPEAL HAS TO BE DISMISSED IN LIMINE A S NOT ADMITTED. 6. IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISMISSED. ORDER PRONOUNCE D IN THE OPEN COURT ON 1 7 .4.2014. S D / - S D / - ( P.K. BANSAL) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 1 7 .4.2014 P.S. - *PK* COPY TO : ( 1 ) APPELLANT ( 2 ) RESPONDENT ( 3 ) CIT CONCERNED ( 4 ) CIT(A) CONCERNED ( 5 ) D.R ( 6 ) GUARD FILE TRUE COPY, BY ORDER