Oriental Bank of Commerce., Belagavi V. The Income Tax Officer, TDS Ward, Belagavi., Belagavi

ITA 464/PAN/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7638 (ITAT-PANAJI)
• Duration Of Justice: 1 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 02-01-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 11-12-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K MEHBOOB ALI KHAN
• Keywords: Recovery proceedings; Application of stay

Judgement Text

1 S.A.NO38 TO 41/PNJ/2015 & ITA NO.464 TO 467/PNJ/2015 IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI JUSTICE DEV DARSHAN SUD, HONBLE PRESIDENT, SHRI JOGINDER SINGH, HON'BLE JUDICIAL MEMBER & SHRI R C SHARMA, HON BLE ACCOUNTANT MEMBER STAY APPLICATION NO . 38 TO 41/PNJ/2015 & ITA NO. 464 TO 467/PNJ/2015 (ASST. YEAR: 20 11 - 12 TO 2014 - 15 ) ORIENTAL BANK OF COMMERCE BELGAVI BRANCH, GROUND FLOOR, TAKKED BUILDING, CLUB ROAD, BELGAGAVI 590 001 V. INCOME TAX OFFICER (TDS) BELAGAVI 590 001 PAN NO. AAACO 0191 M (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI H PADAMCHAND KINCHA C.A . SHRI SHIVPRASAD PARNATTI C.A. DEPARTMENT BY : SHRI K MEHBOOB ALI KHAN - D . R DATE OF HEARING : 0 2 /01/17 . DATE OF PRONOUNCEMENT : 03/01/17 . O R D E R PER JUSTICE DEV DARSHAN SUD, HONBLE PRESIDENT THIS REFERENCE HAS COME UP BEFORE US ON DISAGREEMENT HAVING BEEN EXPRESSED BY THE LEARNED MEMBER S OVER THE APPLICABILITY OF THE DECISION OF THE DELHI BENCH OF THE ITAT IN EMPLOYEES PROVIDENT FUND ORGANIZATION V. ADDL. CIT (TDS), GHAZIABAD IN ITA NO. 1766 TO 1768/DEL/2015 DATED 10/04/2015 . THE BENCH ALSO REFERRED TO THE DECISION OF THE HONBLE SUPREME COURT IN ITO V. M.K.MOHAMMAD KUNHI (1 969) 71 ITR 815 (SUPREME COURT), W HERE THE COURT HOLDS THAT T HE STATU TO RY POWER UNDER SECTION 254 CARRIES WITH IT THE DUTY IN PROPER 2 S.A.NO38 TO 41/PNJ/2015 & ITA NO.464 TO 467/PNJ/2015 CASES TO MAKE SUCH ORDERS FOR STAYING RECOVERY PROCEEDINGS PENDING AN APPEAL BEFORE THE TRIBUNAL, AS WILL PREVENT THE APPEAL, IF SUCCESSFUL , FROM BEING RENDERED NUGATORY. 2. THREE QUESTIONS WERE FRAMED FOR DECISION NAMELY: - ( 1 ) IS AN ORDER OF REJECTION OF A STAY PETITION BY THE CIT( A) AN APPEALABLE ORDER UNDER SECTION 250 OF THE INCOME TAX ACT, 1961. ( 2 ) DOES THE TRIBUNAL HAVE THE POWER TO ADMIT, HEAR AND DECIDE AN APPEAL AGAINST T HE REJECTION OF A STAY PETITION BY THE CIT(A), WHEN NO APPEAL OF THE ASSESSEE ON QUANTUM IS BEFORE THE TRIBUNAL. ( 3 ) CAN THE TRIBUNAL ADMIT, HEAR & DECIDE AN APPEAL AGAINST THE REJECTION OF A STAY PETITION BY THE CIT(A) ESPECIALLY IN VIEW OF SEC. 254(2A) OF THE INCOME TAX ACT, 1961 AND THE PROVISOS THERE UN DER READ WI TH RULE 35A OF THE I.T. ACT RULES 1963. 3 . WE FIND THAT IN THE FIRST QUESTION SECTION 250 HAS BEEN WRONGLY MENTIONED AS IT SHOULD BE SECTION 253. BE THAT AS IT MAY WE FIND IN THE PRESENT CASE THAT THE QUESTION WOULD NOT CALL FOR ADJUDICATION FOR THE REASONS THAT THE QUANTUM APPEAL OF THE ASSESSEE IS ALREADY PENDING BEFORE THIS TRIBUNAL AND AS SUCH, THIS TRIBUNAL COULD ALWAY S PASS SU CH INTERIM ORDERS IN ACCORDANCE WITH LAW IF REQUIRED . 4. LEARNED COUNSEL APPEAR ING FOR THE APPELLANT SUBMIT S THAT EVEN IN A CASE WHERE NO APPEAL IS PENDING BEFORE THIS TRIBUNAL AND THE CIT(A) IS SEIZED OF THE MATTER , REFUSING TO GRANT INTERIM ORDER TO STAY RECOVERY 3 S.A.NO38 TO 41/PNJ/2015 & ITA NO.464 TO 467/PNJ/2015 PROCEEDINGS , T HIS TRIBUNAL CAN ALWAYS ENTERTAIN AN APPEAL AGAINST THE REFUSAL AND ADJUDICATE ON THE LEGALITY OF THE ORDER. WE DO NOT WISH TO ENTER INTO THIS CONTROVERSY AT THIS STAGE AS IT WOULD BE AN ACADEMIC EXERCISE. IT IS WELL SETTLED THAT THE ADJU DI CATORY BODY DO ES NOT ANSWER / ENTERTAIN ACADEMIC QUESTION. IT WOULD NOT BE PROPER FOR US TO PRONOUNCE UPON THE QUESTIONS RAISED BEFORE US IN THESE CIRCUMSTANCES. 5. WE ALSO FIND THAT THE HIGH COURT AT ALLAHABAD HAS ADMITTED A SIMILAR QUESTION IN THE CASE OF PR. COMMISSIONER OF INCOME TAX I AAYAKAR BHAWAN LUCKNOW V. M/S U.P SHIRAM EVAM NIRMAN SHANKARI SANGH LTD., LUCKNOW. THE QUESTION ADMITTED IS: - Q.1. WHETHER UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED INCOME TAX APPELLATE TRIBUNAL FAILED TO CONSIDER ITS OWN THIRD MEMBER BENCH JUDGMENT IN THE CASE OF RAJYA KRISHI UTPADAN MANDI PARISHAD VS. ITO 2(2), LUCKNOW DATED 22.04.2014 FOR A.Y. 2001 02 TO 2003 04 AND 2006 07 IN 153 ITD 101(TM) (LKO) (2015) WHEREIN, IT HAD BEEN HELD THAT APPEALS OF THE ASSESSEE FOR GRANT OF STAY OF TAX DEMAND WERE NOT MAINTAINABLE AND, THEREFORE, THE LEARNED ITAT OUGHT TO HAVE DISMISSED THE APPEAL OF THE ASSESSEE INSTEAD OF ADMITTING & ALLOWING THE APPEAL CONTRARY TO LAW. ...... 6. SINCE THE HONBLE HIGH COURT AT ALLAHABAD IS DEALING WITH THIS QUESTION IN THE CASE AS NOTICED BY U S IT WOULD NOT BE PROPER FOR US TO PROCEED WITH THE MATTER FURTHER . 7. AN APPREHENSION HAS BEEN EXPRESSED BY THE COUNSEL APPEARING FOR THE ASSESSEE THAT SINCE WE HAVE NOT PRONOUNCED UPON THE REFERENCE, THE INTERESTS OF THE ASSESSEE WOULD NOT BE PROTECTED. WE FIND THAT THIS APPREHENSION IS NOT WELL FOUNDED AS IT IS ALWAYS OPEN TO THE ASSESSEE TO 4 S.A.NO38 TO 41/PNJ/2015 & ITA NO.464 TO 467/PNJ/2015 FILE A PROPER APPLICATION FOR STAY OF RECOVERY PROCEEDINGS IN ACCORDANCE WITH THE LAW. 8 . IN THE RESULT, PETITION DISPOSED OF. ORDER PRONOUNCED ON TUESDAY, THE 0 3 RD DAY OF JANUARY, 201 7 AT GOA. SD/ - SD/ - SD/ - (R C SHARMA) ACCOUNTANT MEMBER (JOGINDER SINGH) JUDICIAL MEMBER (JUSTICE DEV DARSHAN SUD) PRESIDENT DATED : 03 RD JANUARY , 201 7 . VSSG BABU / - COPY TO: 1 . THE ASSESSEE. 2 . THE REVENUE. 3 . THE PR. CIT 4 . THE CIT(A) 5 . THE D.R . 6 . GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., PANAJI