DAULAT LUTHRIA, MUMBAI V. ASST CIT 22(1), MUMBAI

ITA 4074/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2447 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 29-06-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Keywords: Application of stay

Judgement Text

MH MHMH MH IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MU MBAI BEFORE SHRI B. R. BASKARAN, AM AND SHRI PAWAN SINGH, JM ./ I.T.A. NO. 4074/MUM/2015 AND SA NO. 234 /M/2015 ( / ASSESSMENT YEAR: 2012-13) SHRI DAULAT LUTHRIA NANUBHAI MENSION BEHIND / VS. ASSISTANT COMMISSIONER OF INCOME TAX, 22(1), MUMBAI ./ ./PAN/GIR NO. ABBL1370L ( /APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SH. VIMAL PUNMIYA -AR / RESPONDENT BY : SH. B.S. BIST - SR DR / DATE OF HEARING : 26.07.2016 / DATE OF PRONOUNCEMENT : 14.10.2016 / O R D E R PER PAWAN SINGH, JM: 1. THIS APPEAL U/S 253 OF INCOME TAX ACT ( ACT) IS DIR ECTED BY ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX APPEALS -34 DATED 10 JUN E 2015 FOR AY 2012-13. 2. THE FACTS IN BRIEF, LEADING TO FILE THE PRESENT APP EAL ARE THAT ASSESSEE FILED RETURN OF INCOME FOR RELEVANT ASSESSMENT YEAR ON 22 SEPTEMBER 2012, DECLARING TOTAL INCOME AT RS.72,42,800/-. THE CASE WAS SELECTED FOR SCRUTINY AND THE ASSESSMENT UNDER SECTION 143( 3) WAS COMPLETED ON 24 TH MARCH 2015, ASSESSING THE TOTAL INCOME OF ASSESSE E AT RS. 2,13,35,922/-. THE AO WHILE FRAMING ASSESSMENT MAD E THE ADDITION OF RS.1,56,56,922/- AS INCOME FROM AOP, AGAINST THE ASSESSEE ON PROTECTIV E BASIS. ON THE BASIS OF ADDITION A DEMAND OF RS. 61,72,820/- WAS RAISED AGAINST THE AS SESSEE. THE ASSESSEE VIDE HIS APPLICATION DATED 30 TH APRIL 2015, REQUESTED THE AO FOR STAY OF DEMAND. T HE AO VIDE ITS ORDER DATED 19 MAY 2015, REJECTED THE SAID APPLICATION (THUS DECLI NED THE STAY OF DEMAND). THE ASSESSEE I.T.A. NO . 4074/MUM/2015 AND SA NO. 234/M/2015 DAULAT LUTHRIA A Y 2012-13 2 AGAIN APPROACHED THE AO VIDE HIS APPLICATION DAT ED 20 TH MAY 2015 AND PRAY FOR RECONSIDERATION OF THE STAY APPLICATION, HOWEVER, T HE SAME WAS AGAIN REJECTED BY AO VIDE ORDER DATED 3 JUNE 2015. THE ASSESSEE THEREAFTER AP PROACHED COMMISSIONER OF INCOME TAX APPEALS FOR STAY OF DEMAND VIDE HIS APPLICATION DAT ED 6 JUNE 2015. HOWEVER, THE LEARNED CIT(A) VIDE ORDER DATED 10 TH JUNE 2015, DIRECTED THE ASSESSEE TO APPROACH THE A O FOR STAY OF DEMAND. AGGRIEVED BY THE ORDER OF CIT(A) THE ASS ESSEE HAS FILED THE PRESENT APPEAL BEFORE US, FOR STAY OF DEMAND AGAINST THE ASSESSEE TILL THE DISPOSAL OF APPEAL OF ASSESSEE PENDING BEFORE LANDED CIT(A) . IN THE APPEAL, THE A SSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL; ( 1). ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW, LEARNED CIT A ERRED IN NOT GRANTING THIS DAY OF DISPUTED DEMAND OF RS. 6 17282 0/- (2). ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW, THE LANDED CIT A FAILED TO APPRECIATE THAT THE LEARNED CIT HAVE INHERENT POWER TO GRANT THE STAY. (3). ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW. LANDED CIT A ERRED IN DIRECTING TO APPROACH THE ASSESSING OFFICER 40/DEMAND WHEN HE HIMSELF HAVE POWER TO GRANT THE STAY OF DEMAND. 3. WE HAVE HEARD THE LD AR OF THE ASSESSEE AND LD DR FOR THE REVENUE AND GONE THROUGH THE ASSESSMENT ORDER DATED 24 TH MARCH 2015 AND THE ORDER IMPUGNED IN THE PRESENT APPEAL. THE LD AR OF THE ASSESSEE ARGUED THAT THE PRESENT APPEA L IS MAINTAINABLE BEFORE THIS TRIBUNAL IN VIEW OF THE RATIO OF LAW LAID DOWN BY HONBLE APEX COURT IN CASE OF I TO VERSUS MK MOHAMMAD KUNHI, 71 ITR 815 (SC), WHEREIN IT WAS HEL D THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAS INHERENT POWER TO STAY THE DEMAND WHEN APPEAL IS PENDING BEFORE HIM FOR DISPOSAL. THE LD AR OF THE ASSESSEE FURTHER AR GUED THAT THE LEARNED CIT(A) INSTEAD OF GIVING OPPORTUNITY OF HEARING AND CONSIDERING THE F ACTS IN THE APPLICATION FOR A STAY OF DEMAND, ORDERED THE ASSESSEE TO APPROACH THE ASSES SING OFFICER. THE AO HAD ALREADY REJECTED THE STAY APPLICATION FILED BEFORE HIM. THE LEARNED AR OF ASSESSEE FURTHER RELIED UPON THE DECISION OF DELHI TRIBUNAL IN EMPLOYEES PR OVIDENT FUND ORGANIZATION VERSUS ACIT (TDS) IN ITA NO 1766 TO 1768/DEL/2015. LD AR O F THE ASSESSEE FURTHER ARGUED THAT THE ASSESSEE HAS GOOD PRIMA FACIE CASE ON MERIT AND IS LIKELY TO SUCCEED IN APPEAL. THE APPELLANT/ ASSESSEE WOULD SUFFER IRREPARABLE LOSS A ND INJURY, IF THE DEMAND IS NOT A STAYED TILL THE DISPOSAL OF THE APPEAL PENDING BEFORE LEAR NED COMMISSIONER OF INCOME TAX (APPEALS). EVEN OTHERWISE THE ADDITION WAS MADE IN THE ASSESSMENT ORDER ONLY ON PROTECTIVE BASIS. ON THE OTHER HAND LD CIT - DR ARG UED THAT THE APPEAL IS NOT MAINTAINABLE BEFORE THE TRIBUNAL AS THE ORDER PASSED BY LD CIT( A) IS NOT AN ORDER UNDER SECTION 250 OF THE INCOME TAX ACT. THE SAID ORDER WAS PASSED BY CI T(A) UNDER HIS ADMINISTRATIVE CAPACITY. I.T.A. NO . 4074/MUM/2015 AND SA NO. 234/M/2015 DAULAT LUTHRIA A Y 2012-13 3 4. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE PART IES AND FURTHER GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. THE AO WHILE FRAMING ASSESSMEN T MADE THE ADDITION OF RS.1,56,56,922/- AGAINST THE ASSESSEE AS INCOME FRO M AOP, ON PROTECTIVE BASIS. THE ASSESSEE HAS ALREADY FILED APPEAL BEFORE THE COMMIS SIONER OF INCOME TAX (APPEALS) ON 24 APRIL 2015, WHICH HAS NOT YET BEEN DECIDED. THE AO HAS RAISED THE DEMAND OF RS. 61,72,820/-. THE APPLICATION MOVED BY ASSESSEE BEF ORE THE FIRST APPELLATE AUTHORITY, FOR STAY OF THE IMPUGNED DEMAND, WHERE THE APPEAL OF THE ASS ESSEE IS PENDING, HOWEVER, NO STAY ORDER WAS PASSED ON THE APPLICATION OF ASSESSEE. TH E AO ALREADY REJECTED THE STAY APPLICATION MOVED BY ASSESSEE NOT ONLY ONCE BUT TWI CE. THE LD AR FOR THE ASSESSEE RELIED UPON THE DECISION OF DELHI TRIBUNAL IN EMPLOYEE PR OVIDENT FUND ORGANIZATION VERSUS ACIT (TDS) (SUPRA) WHICH IS IN FAVOUR OF ASSESSEE. HOWEVER, THIRD MEMBER BENCH OF LUCKNOW TRIBUNAL IN RAJYA KRISHI UTPADAN MANDI P ARISHAD VERSUS ITO IN ITA NO 141- 144/LKW/2009 (2016) 158 ITD 71, CONSIDERING THE ID ENTICAL QUESTION HELD AS UNDER:- 17. FROM THE ABOVE DECISION TO WOULD BE CLEAR THAT THE POWER TO GRANT A STAY OF COLLECTION OF TAX IS AN INHERENT AND INCIDENTAL POW ER OF THE APPELLATE AUTHORITY FOR THE EFFECTIVE EXERCISE OF APPELLATE POWERS. SINCE I N THE INSTANT CASE THE REGULAR APPEAL OF THE ASSESSEE IS PENDING BEFORE LD CIT(A) I.E. FIRST APPELLATE AUTHORITY AT THE TIME OF PASSING OF ORDER ON STAY PETITION SO, HE H AS POWER TO GRANT A STAY. HOWEVER, NO APPEAL IS PENDING BEFORE THE TRIBUNAL AND THERE IS NO SPECIFIC EXPRESS POWER WITH THE TRIBUNAL TO ENTERTAIN AND DISPOSED OF SUCH APPE ALS, SO THE TRIBUNAL CANNOT GRANT THIS DAY OF COLLECTION OF TAX BY ENTERTAINING THE A PPEALS AGAINST THE ORDER OF LEARNED CIT(A) FOR STAY OF RECOVERY. IN OTHER WORDS, THE T RIBUNAL CANNOT INTERFERE WITH THE ORDER PASSED BY LD CIT(A) IN HIS INHERENT AND INCID ENTAL POWER OF ITS APPELLATE JURISDICTION. 18. THEREFORE, IN MY CONSIDERED VIEW, TH E APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) PASSED ON APPLICATIONS OF THE ASSES SEE FOR GRANT OF STAY OF TAX DEMAND, ARE NOT MAINTAINABLE. THEREFORE, APPEALS AG AINST SUCH ORDERS CANNOT BE ADMITTED AND THAT SUCH, AND LIABLE TO BE DISMISSED. 5. CONSIDERING THE DECISION OF THIRD MEMBER IN RAJYA KRISHI UTPADAN MANDI PARISHAD(SUPRA) OF COORDINATE BENCH OF LUCKNOW, WHI CH IS A BINDING PRECEDENT ON US, WE HOLD THAT APPEAL OF THE ASSESSEE IS NOT MAI NTAINABLE BEFORE THIS TRIBUNAL. HENCE THE APPEAL FILED BY THE ASSESSEE IS DISMISSED . HOWEVER, KEEPING IN VIEW THE PRINCIPLE OF NATURAL J USTICE, WE HEREBY DIRECT THE LD CIT(A) TO DECIDE THE STAY APPLICATION OF THE ASSESS EE AFRESH IN ACCORDANCE WITH THE DECISION OF HONBLE APEX COURT IN ITO VERSUS MK MOH AMMAD KUNHI (1969) 71 ITR 815 (SC). 6. IN THE RESULT APPEAL OF THE ASSESSEE IS DISMISSED. I.T.A. NO . 4074/MUM/2015 AND SA NO. 234/M/2015 DAULAT LUTHRIA A Y 2012-13 4 SA NO.234/M/2015 7. AS WE HAVE DISMISSED THE APPEAL OF THE ASSESSEE HO LDING THAT APPEAL OF THE ASSESSEE FOR GRANT OF STAY OF TAX DEMAND ARE NOT MAINTAINABLE. THEREFORE THE APPLICATION FOR STAY IS ALSO NOT MAINTAINABLE AND THUS THE SAME IS DISMISSED. 8. IN THE RESULT, APPEAL OF THE ASSESSEE AS WELL AS TH E APPLICATION FOR STAY IS DISMISSED. HOWEVER, THE LEARNED CIT(A) IS DIRECTED TO COMPLY T HE DIRECTION CONTAINED IN SUB PARA OF PARA 5 OF THIS ORDER WITHIN WEEK OF RECEIPT OF TH IS ORDER. 9. ORDER ANNOUNCED IN THE OPEN COURT ON 1 4 TH DAY OF OCTOBER 2 016. SD/- SD/- (B. R. BASKARAN) (PAWAN SINGH) ! / ACCOUNTANT MEMBER ' # ! / JUDICIAL MEMBER MUMBAI; # DATED : 14.10.2016 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ' ( ) / THE CIT(A) 4. ' / CIT - CONCERNED 5. * , * , / DR, ITAT, MUMBAI 6. +, / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI