Pragati Colonisers Pvt. Ltd., Lucknow V. Commissioner of Income Tax (Appeals), Lucknow

ITA 794/LKW/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4663 (ITAT-LUCKNOW)
• Duration Of Justice: 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 09-02-2016
• Assessment Year: misc
• Appeal Filed On: 16-12-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: DR A K SINGH
• Keywords: Application of stay
• Section: 154

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.794/LKW/2015 CIT(APPEALS), LUCKNOW- 226001 VS. PRAGATI COLONISERS PVT. LTD., A-29, SECTOR-J, RAIL NAGAR, KANPUR ROAD, LUCKNOW-226012 PAN AAECP 3073 D STAY PETITION NO.01/LKW/2016 (ITA NO.794/LKW/2015) CIT(APPEALS), LUCKNOW- 226001 VS. PRAGATI COLONISERS PVT. LTD., A-29, SECTOR-J, RAIL NAGAR, KANPUR ROAD, LUCKNOW-226012 PAN AAECP 3073 D (RESPONDENT) (APPELLANT) SHRI DHARMENDRA KUMAR, CA APPELLANT BY DR. A.K. SINGH, CIT DR RESPONDENT BY 10/02/2016 DATE OF HEARING 04/03/2016 DATE OF PRONOUNCEMENT O R D E R PER SUNIL KUMAR YADAV, JM. 1. THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-I, KANPUR, INTERALIA ON FOLLOWING GROUNDS :- . 1. THAT LEARNED CIT(A)-II, LUCKNOW ERRED IN FACTS AND LEGAL ASPECTS OF THE CASE IN REJECTING THE APPLICATION FOR STAY O F DEMAND FILED BY APPELLANT BEFORE HIM. 2 2. THAT APPELLANT NEVER AUTHORIZED ITS COUNSELS F OR ACCEPTING THE TAX DEMAND OR ANY PART OF IT TO BE DEPOSITED WITHOU T PRIOR PERMISSION OF APPELLANT, EVEN VAKALATNAMA EXECUTED IN FAVOUR OF COUNSELS DID NOT GRANT THE AUTHORITY FOR ACCEPTI NG THE TAX DEMAND. 3. THE COUNSELS OF APPELLANT NEVER AGREED FOR TAX DEPOSIT OF RS.40 LACS, AS PROPOSED BY LD.CIT(A)-II, LUCKNOW FOR AND ON BEHALF OF APPELLANT. 4. THAT LD.CIT(A) ARBITRARILY IGNORED THE FACTS TH AT COUNSELS OF APPELLANT HAD NOT SIGNED THE ORDER-SHEET PROPOSING OF TAX DEPOSIT TO THE EXTENT OF RS.40 LACS, FURTHER, HE AR BITRARILY TREATED THE AFFIDAVITS FILED BY THE COUNSELS AS FAL SE AND PERJURIOUS, WHICH IS ILLEGAL AND AGAINST THE FACTS. 5. THAT CBI ARRESTED ORIGINAL ASSESSING OFFICER F OR CHARGES OF ILLEGAL DEMAND FROM APPELLANT AND LD.AO WHO TOOK THE CHARGE OF ORIGINAL AO WAS CO-ACCUSED IN FIR, FILED BY CBI. LD .AO BEING BIASED, MADE HUGE ADDITIONS IN THE INCOME OF APPELL ANT WITHOUT ANY BASIS, WHICH RESULTED HEAVY TAX DEMAND, HENCE I N THE FACTS AND CIRCUMSTANCES OF CASE, TAX DEMAND SHOULD HAVE B EEN STAYED TILL THE DISPOSAL OF APPEAL, 6. THAT THE APPELLANT SEEKS PERMISSION TO MODIFY AND/OR ADD ANY OTHER GROUNDS OR GROUNDS OF APPEAL AS THE CIRCUMSTA NCES OF THE CASE MIGHT REQUIRE OR JUSTIFY. 2. BESIDES, THE ASSESSEE HAS ALSO FILED AN APPLICAT ION FOR STAY OF DEMAND TILL THE DISPOSAL OF APPEAL. THE STAY APPLICATION AND TH E APPEAL WERE TAKEN UP FOR HEARING AND DURING THE COURSE OF HEARING, IT IS NOT ED THAT THIS APPEAL IS FILED AGAINST THE ORDER OF LD. CIT(A) PASSED U/S 154 OF T HE INCOME TAX ACT, 1961. THE FACTS GERMANE TO THE CONTROVERSY ARE THAT DURING TH E HEARING OF THE STAY APPLICATION BEFORE THE CIT(A), LD. COUNSEL FOR THE ASSESSEE, AFTER TAKING TELEPHONIC CONCURRENCE OF THE ASSESSEE THROUGH HIS MOBILE, HAD AGREED TO PAY RS.40,00,000/- IN TWO EQUAL INSTALLMENTS BY 30.09.2 015. ACCORDINGLY, AN ORDER WAS PASSED ON 28.08.2015 DIRECTING THE APPELLANT TO PAY THE AGREED SUM BY 30.09.2015 AND SUBJECT TO AFORESAID PAYMENT, THE RE MAINING DEMAND WAS DIRECTED TO BE KEPT IN ABEYANCE UNTIL THE DISPOSAL OF THE MAIN APPEAL FILED BY THE 3 APPELLANT OR UNTIL 31.12.2015, WHICHEVER WAS EARLIE R. A COPY OF THE AFORESAID ORDER WAS HANDED OVER TO THE LD. COUNSELS ON THE SA ME DAY IMMEDIATELY AFTER THE CONCLUSION OF THE PROCEEDING AND PASSING OF THE AFORESAID ORDER. BUT THE PAYMENTS WERE NOT MADE AS DIRECTED BY THE CIT(A) AN D THE ASSESSEE MOVED AN APPLICATION ON 17.09.2015 ALONG WITH THE AFFIDAVITS OF THE COUNSELS, STATING THEREIN THAT THEY NEVER AGREED TO MAKE ANY PAYMENT. THE CIT(A) HAS DISPOSED OF THE SAID RECTIFICATION APPLICATION HAVING OBSERV ED THAT THE SAID APPLICATION IS A GROSS ABUSE OF THE PROCESS OF LAW IN AS MUCH AS THE AFORESAID ORDER DATED 28.08.2015 WAS DICTATED IN THE OPEN CHAMBER IN THE PRESENCE OF THE LAWYER APPEARING FOR THE APPELLANT WHO IN TURN TOOK TELEPH ONIC APPROVAL FROM THE CLIENT BEFORE CONCEDING TO MAKE PAYMENT OF RS.40,00,000/- IN TWO EQUAL INSTALLMENTS BY 30.09.2015 AND A COPY OF THE SAID ORDER WAS IMME DIATELY MADE AVAILABLE TO THE LAWYER AS EVIDENCED BY THE TEAR OFF ACKNOWLEDGE MENT SLIP DATED 28.08.2015. 3. AGGRIEVED WITH THIS ORDER, THE ASSESSEE PREFERRE D AN APPEAL BEFORE THE TRIBUNAL AND ALSO MOVED AN APPLICATION FOR STAY OF DEMAND TILL THE DISPOSAL OF THE APPEAL. DURING THE COURSE OF HEARING, A SPECIFIC QU ERY WAS RAISED FROM THE LD. COUNSEL FOR THE ASSESSEE THAT SINCE HE HAS DISPUTED THE FACTS RECORDED IN THE ORDER OF THE CIT(A) THAT THE LD. COUNSEL FOR THE AS SESSEE HAS AGREED FOR MAKING THE PAYMENT OF RS.40,00,000/- IN TWO EQUAL INSTALLM ENTS BY 30.09.2015; WHY HAS HE NOT APPROACHED TO THE PRINCIPAL CCIT THAT THE CI T(A) HAS RECORDED THE INCORRECT FACTS IN HIS ORDER DATED 28.08.2015, LD. COUNSEL FOR THE ASSESSEE COULD NOT FURNISH SATISFACTORY EXPLANATION. NO EVIDENCE I S PLACED ON RECORD TO ESTABLISH THAT THE FACTS RECORDED IN THE ORDER DATED 28.08.20 15 WAS INCORRECT. MOREOVER, UNDER THE EVIDENCE ACT, THERE IS PRESUMPTION UNDER LAW THAT THE PROCEEDING RECORDED BY AN OFFICER SEEMS TO BE TRUE UNLESS CONT RARY IS PROVED. IT IS VERY STRANGE TO NOTE THAT WHEN THE CIT(A) HAS PASSED AN ORDER FOR MAKING PAYMENT OF RS.40,00,000/- IN TWO EQUAL INSTALLMENTS BY 30.0 9.2015. WHY HAS THE 4 ASSESSEE WAITED FOR 17.09.2015 WHEN THE APPLICATION FOR RECTIFICATION WAS MOVED? 4. KEEPING IN VIEW THE TOTALITY OF THE FACTS AND CI RCUMSTANCES OF THE CASE, WE ARE OF THE OPINION THAT NO INTERFERENCE IN THE ORDE R OF THE CIT(A) IS CALLED FOR AS CIT(A) HAS PROPERLY DISPOSED OF THE RECTIFICATION A PPLICATION OF THE ASSESSEE. WE ACCORDINGLY, CONFIRM THE ORDER OF THE LD. CIT(A). H OWEVER, WE DIRECT THE CIT(A) TO DISPOSE OF THE APPEAL OF THE ASSESSEE WITHIN A P ERIOD OF ONE MONTH FROM THE DATE OF RECEIPT OF THIS ORDER. SINCE THE APPEAL OF THE ASSESSEE HAS BEEN DISPOSED OF, THE STAY PETITION OF THE ASSESSEE HAS BECOME IN FRUCTUOUS AND ACCORDINGLY WE DISMISS THE SAME. 5. IN THE RESULT, APPEAL AND STAY PETITION OF THE A SSESSEE ARE DISMISSED SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 04/03/2016 AKS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR