ITO.26(1)(1), Mumbai V. SHRI. AKBARALI JIVABHAI MOMOIN, Mumbai

ITA 447/MUM/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4180 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 30-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MAHESH SHAH
• Assessee Lawyers: HAN
• Keywords: Application of stay; Extension of stay
• Section: 32; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER M.A. NO.447/MUM./2019 ( ARISING OUT OF S. A . NO. 3 2 / MUM . /201 9 ) ( ASSESSMENT YEAR : 2011 12 ) DY. COMMISSIONER OF INCOME TAX CIRCLE 4(1)(2), MUMBAI . APPELLANT V/S VODAFONE INDIA SERVICES PVT. LTD. INDIA BULLS FINANCE CENTRE TOWER I, 1201, 12 TH FLOOR SENAPATI BAPAT ROAD, ELPHINSTONE (W) MUMBAI 400 020 PAN AAACZ1849D . RESPONDENT REVENUE BY : SHRI MAHESH SHAH ASSESSEE BY : SHRI P.J. PARDIWALA A/W MS. FERESHTHE SATHNA AND SHRI HANSMUKH KAMARIA DATE OF HEARING 19 .08.2019 DATE OF ORDER 23.08.2019 O R D E R PER SAKTIJIT DEY. J.M. THE REVENUE HAS FILED THE CAPTIONED APPLICATION WITH THE FOLLOWING PRAYER ( AS STATED IN PARA 15 OF THE APPLICATION ) . THE HONBLE ITAT MAY KINDLY VACATE THE STAY GRANTED VIDE ORDER DATED 08/02/2019 AND IN ANY CASE, NO EXTENT THE SAME. AND 2 VODAFONE INDIA SERVICES PVT. LTD. ANY OTHER RELIEF THAT MAY BE CONSIDERED APPROPRIATE ON THE FACTS OF THE CASE. 2 . BRIEF FACTS ARE, THE ASSESSEE COMPANY WAS INITIALLY GRANTED CONDITIONAL STAY VIDE ORDER DATED 18 TH MARCH 2016, IN S.A. NO.108/ MUM./2016. THE CONDITIONS IMPOSED BY THE TRIBUNAL WHILE GRANTING STAY ARE AS UNDER: I ) TO PAY A SUM OF ` 50 CRORE ON/OR BEFORE 31/03/2016; II ) TO FURNISH A CORPORATE GUARANTEE TO THE SATISFACTION OF THE ASSESSING OFFICER WITHIN FOUR WEEKS IN RESPECT OF BALANCE OUTSTANDING DEMAND; III ) THE STAY SHALL OPERATE FOR A PERIOD OF SIX MONTHS FROM THE DATE OF ORDER OR TILL DISPOSAL OF THE APPEAL BY THE TRIBUNAL WHICHEVER IS EARLIER. 3 . THEREAFTER, ON APPLICATION BEING MADE BY THE ASSESSEE, THE CONDITIONAL STAY GRANTED WAS EXTENDED FROM TIME TO TIME AND THE LAST ORDER PASSED BY THE TRIBUNAL EXTENDING STAY WAS VIDE ORDER DATED 8 TH FEBRUARY 2019, IN S.A. NO.32/MUM./2019. IN THE AFORESAID ORDER, IT WAS MADE CLEAR THAT THE STAY GRANTED WOULD CONTINUE FOR A PERIOD OF 180 DAYS FROM THE DATE OF ORDER OR TILL DISPOS AL OF ASSESSEES APPEAL WHICHEVER IS EARLIER. 4 . SHRI MAHESH SHAH, THE LEARNED DEPARTMENTAL REPRESENTATIVE , AT THE OUTSET , MADE A REQUEST THAT THIS MISC. APPLICATION SHOULD BE HEARD ALONG WITH FRESH STAY APPLICATION FILED BY THE ASSESSEE VIDE S.A. NO. 3 VODAFONE INDIA SERVICES PVT. LTD. 319/MU M./2019. WITHOUT PREJUDICE, HE SUBMITTED , THE PRESENT MISC. APPLICATION , THOUGH , HAS BEEN FILED AGAINST THE ORDER DATED 8 TH FEBRUARY 2019, HOWEVER, IT IS MAINTAINABLE AS IT PERTAINS TO EXTENSION OF STAY REPEATEDLY SOUGHT BY THE ASSESSEE. 5 . SHRI P.J. PARDIWA LA, THE LEARNED SR. COUNSEL FOR THE ASSESSEE SUBMITTED , THE PRESENT MISC. APPLICATION IS NOT MAINTAINABLE FOR TWO REASONS. FIRSTLY, THE PROVISION OF SECTION 254(2) OF THE ACT IS APPLICABLE ONLY IN RESPECT OF AN ORDER PASSED UNDER SUB SECTIO N (1) OF SECTION 254 OF THE ACT AND NOT AGAINST A STAY ORDER PASSED UNDER THE PROVISO TO SECTION 254(2A). SECONDLY, HE SUBMITTED, SINCE THE ORDER SOUGHT TO BE RECALLED HAS ALREADY EXPIRED, NOTHING REMAINS TO RECALLED OR MODIFIED. THUS, HE SUBMITTED, THE PRESENT APPLICATIO N FILED BY THE REVENUE SHOULD BE DISMISSED. 6 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. ADMITTEDLY, THE INITIAL STAY ORDER PASSED IN S.A. NO.108/MUM./2016, DATED 18 TH MARCH 2016, WAS OPERATIVE FOR A PERIOD OF SIX MONTHS FROM THE D ATE OF ORDER OR TILL DISPOSAL OF THE CORRESPONDING APPEAL, WHICHEVER IS EARLIER . SIMILARLY, THE ORDER DATED 8 TH FEBRUARY 2019, WAS ALSO OPERATIVE FOR A PERIOD OF 180 DAYS OR TILL DISPOSAL OF THE APPEAL WHICHEVER IS EARLIER. UNDISPUTEDLY, IN THE MEANWHILE, OPERATION OF BOTH THE ORDERS HAS EXPIRED DUE TO LAPSE OF SIX MONTH TIME PERIOD FROM THE DATE OF THE ORDER. THEREFORE, WHEN THE 4 VODAFONE INDIA SERVICES PVT. LTD. ORDER S HAVE OUTLIVED THEIR UTILITY AND LOST THEIR FORCE IN COURSE OF TIME, NOTHING SURVIVES FOR EITHER RECALL OR MODIFICATION. T HAT BEING THE CASE, THE PRESENT APPLICATION FILED BY THE DEPARTMENT SEEKING MODIFICATION/ VARIATION OF ORDER DATED 8 TH FEBRUARY 2019, IN S.A. NO.32/MUM./2019, HAS BECOME INFRUCTUOUS. FOR THE AFORESAID REASONS, WE ARE UNABLE TO ACCEDE TO THE REQUEST OF THE R EVENUE TO CLUB THIS APPLICATION WITH THE STAY APPLICATION FILED BY THE ASSESSEE. THE FRESH STAY APPLICATION FILED BY THE ASSESSEE HAS TO BE CONSIDERED ON ITS OWN MERIT AND IT IS OPEN TO THE REVENUE TO PUT FORWARD ALL ITS SUBMISSIONS OBJECTING TO GRANT OF S TAY TO THE ASSESSEE. HOWEVER, THAT IS ALTOGETHER AN INDEPENDENT PROCEEDING AND HAS TO BE DECIDED KEEPING IN VIEW THE RESPECTIVE CONTENTION S OF THE PARTIES. IN VIEW OF THE AFORESAID, THE PRESENT APPLICATION FILED BY THE REVENUE HAVING BECOME INFRUCTUOUS DES ERVES TO BE DISMISSED. ACCORDINGLY, WE DO SO. 7 . IN THE RESULT, MISC. APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN C OURT ON 23.06.2019 SD/ - N.K. PRADHAN ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED : 23.06.2019 5 VODAFONE INDIA SERVICES PVT. LTD. COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI