ACIT, C-2(1), Chandigarh V. M/s Fastway Transmission (P) Ltd., Chandigarh

MA 115/CHANDI/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4782 (ITAT-CHANDIGARH)
• Duration Of Justice: 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-08-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 19-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDRA KANTA
• Assessee Lawyers: HARISH NAYYAR
• Keywords: Recovery proceedings; Opportunity of being heard; Application of stay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH A, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND DR. B.R.R. KUMAR, ACCOUNTANT MEMBER M.A. NO. 114/CHD/2019 (IN STAY APPLICATION NO. 5/CHD/2019) (IN ITA NO. 842/CHD/2018) (ASSESSMENT YEAR: 2014-15) THE ACIT VS. M/S FASTWAY TRANSMISSION(P) LTD. CIRCLE-2(1) PLOT NO. 17, INDUSTRIAL AREA CHANDIGARH PHASE-1, CHANDIGARH PAN: AABCF1854B M.A. NO. 115/CHD/2019 (IN STAY APPLICATION NO. 6/CHD/2019) (IN ITA NO. 139/CHD/2019) (ASSESSMENT YEAR: 2012-13) THE ACIT VS. M/S FASTWAY TRANSMISSION(P) LTD. CIRCLE-2(1) PLOT NO. 17, INDUSTRIAL AREA CHANDIGARH PHASE-1, CHANDIGARH PAN: AABCF1854B M.A. NO. 116/CHD/2019 (IN STAY APPLICATION NO. 7/CHD/2019) (IN ITA NO. 140/CHD/2019) (ASSESSMENT YEAR: 2015-16) THE ACIT VS. M/S FASTWAY TRANSMISSION(P) LTD. CIRCLE-2(1) PLOT NO. 17, INDUSTRIAL AREA CHANDIGARH PHASE-1, CHANDIGARH PAN: AABCF1854B (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI HARISH NAYYAR DEPARTMENT BY : SMT. CHANDRAKANTA DATE OF HEARING : 06/08/2019 2 DATE OF PRONOUNCEMENT :09/08/2019 O R D E R PER DR.B.R.R.KUMAR, A.M . BOTH THE ABOVE MISC. APPLICATIONS HAVE BEEN FILED B Y THE DEPARTMENT AND REQUESTING FOR RECTIFICATION OF THE ORDER DATED 14/02/2019 IN STAY APPLICATIONS NO. 5 & 6/CHD/2019. 2. THE MISCELLANEOUS APPLICATION NOS. 114&115/CHD/2 019 HAVE BEEN FILED IN RELATION TO THE STAY APPLICATION NOS. 5 &6/CHD/2019 . WHILE THE ORIGINAL GROUNDS WERE FILED ON 19/07/2019, THE AMENDED GROUNDS WERE FILED ON 29/07/2019 WHICH HAVE BEEN DULY TAKING INTO CONSIDERATION. 3. THAT THE AFORESAID STAY APPLICATIONS WERE HEARD BY THIS TRIBUNAL AND ORDER HAS BEEN PASSED ON 14/02/2019 GRANTING STAY O N THE FURTHER RECOVERY PROCEEDINGS. THE OPERATIVE PART OF THE ORDER IS REP RODUCED HEREUNDER: 9. IN THE CIRCUMSTANCES, WE DISPOSE ALL THESE APPE ALS BY GRANTING STAY HENCE FORTH WITH IMMEDIATE EFFECT ON THE OUTSTANDIN G DEMAND AND WITH DIRECTIONS TO REFRAIN FROM TAKING ANY COERCIVE ACTI ON. WE ALSO DIRECT THAT DURING THE PENDENCY OF THE ABOVE APPEALS, THE ATTACHMENT O F BANK ACCOUNTS LEVIED ON THE ASSESSEE STAND RELEASED FORTHWITH. THE ASSES SEE SHALL NOT DISPOSE OF OR CREATE THIRD PARTY RIGHT IN RESPECT OF HIS IMMOVABL E ASSETS. THIS, HOWEVER, SHALL NOT PREVENT THE PETITIONER/ASSESSEE FROM UTILIZING HIS ASSETS AND PROPERTIES IN THE ORDINARY AND NORMAL COURSE OF BUSINESS. 4. THE REVENUE AT PARA NO. 11 OF THE M.A. BROUGHT T O OUR NOTICE THAT THE PERIOD DURING WHICH THE STAY SHALL OPERATE HAS NOT BEEN SPECIFIED. 5. HAVING GONE THROUGH THE STAY ORDER, WE HEREBY HO LD THAT THE STAY IS VALID FOR THE PERIOD OF 180 DAYS AS PER THE PROVISIONS OF SECTION 254(2A) OF THE INCOME TAX ACT, 1961. FURTHER IN ADDITION TO THE GROUNDS RAISED AT PARA N O. 5 AND 11 WHICH HAS BEEN ALREADY ADJUDICATED ABOVE, THE REVENUE HAS ALS O RAISED THE FOLLOWING 3 GROUNDS AT WHICH ARE BEING DEALT PARA WISE TAKING I NTO CONSIDERATION THE PROVISIONS OF THE INCOME TAX ACT,1961 MENTIONED BEL OW PERTAINING TO RECTIFICATION: 6. THE PROVISIONS OF SECTION 254(2) ARE AS UNDER: (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED, WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, AM END ANY ORDER PASSED BY IT UNDER SUB-SECTION (1), OR THE ASSESSIN G OFFICER: PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCING AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INC REASING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE AND SH ALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE B Y THE ASSESSEE UNDER THIS SUB-SECTION UNLESS THE APPELLATE TRIBUNA L HAS GIVEN NOTICE TO THE ASSESSEE OF ITS INTENTION TO DO SO AND HAS A LLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD: PROVIDED FURTHER THAT ANY APPLICATION FILED BY THE ASSESSEE IN THIS SUB-SECTION ON OR AFTER THE 1ST DAY OF OCTOBER, 199 8, SHALL BE ACCOMPANIED BY A FEE OF FIFTY RUPEES. (2A) IN EVERY APPEAL, THE APPELLATE TRIBUNAL, WHERE IT IS POSSIBLE, MAY HEAR AND DECIDE SUCH APPEAL WITHIN A PERIOD OF FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH SUCH AP PEAL IS FILED UNDER SUB-SECTION (1) OR SUB-SECTION (2) OF SECTION 253: PROVIDED THAT THE APPELLATE TRIBUNAL MAY, AFTER CON SIDERING THE MERITS OF THE APPLICATION MADE BY THE ASSESSEE, PAS S AN ORDER OF STAY IN ANY PROCEEDINGS RELATING TO AN APPEAL FILED UNDER SUB- 4 SECTION (1) OF SECTION 253, FOR A PERIOD NOT EXCEED ING ONE HUNDRED AND EIGHTY DAYS FROM THE DATE OF SUCH ORDER AND THE APPELLATE TRIBUNAL SHALL DISPOSE OF THE APPEAL WITHIN THE SAI D PERIOD OF STAY SPECIFIED IN THAT ORDER: PROVIDED FURTHER THAT WHERE SUCH APPEAL IS NOT SO D ISPOSED OF WITHIN THE SAID PERIOD OF STAY AS SPECIFIED IN THE ORDER O F STAY, THE APPELLATE TRIBUNAL MAY, ON AN APPLICATION MADE IN T HIS BEHALF BY THE ASSESSEE AND ON BEING SATISFIED THAT THE DELAY IN DISPOSING OF THE APPEAL IS NOT ATTRIBUTABLE TO THE ASSESSEE, EXT END THE PERIOD OF STAY, OR PASS AN ORDER OF STAY FOR A FURTHER PERIOD OR PERIODS AS IT THINKS FIT; SO, HOWEVER, THAT THE AGGREGATE OF THE PERIOD ORIGINALLY ALLOWED AND THE PERIOD OR PERIODS SO EXTENDED OR AL LOWED SHALL NOT, IN ANY CASE, EXCEED THREE HUNDRED AND SIXTY-FIVE DA YS AND THE APPELLATE TRIBUNAL SHALL DISPOSE OF THE APPEAL WITH IN THE PERIOD OR PERIODS OF STAY SO EXTENDED OR ALLOWED: PROVIDED ALSO THAT IF SUCH APPEAL IS NOT SO DISPOSE D OF WITHIN THE PERIOD ALLOWED UNDER THE FIRST PROVISO OR THE PERIO D OR PERIODS EXTENDED OR ALLOWED UNDER THE SECOND PROVISO, WHICH SHALL NOT, IN ANY CASE, EXCEED THREE HUNDRED AND SIXTY-FIVE DAYS, THE ORDER OF STAY SHALL STAND VACATED AFTER THE EXPIRY OF SUCH P ERIOD OR PERIODS, EVEN IF THE DELAY IN DISPOSING OF THE APPEAL IS NOT ATTRIBUTABLE TO THE ASSESSEE. (2B) THE COST OF ANY APPEAL TO THE APPELLATE TRIBUN AL SHALL BE AT THE DISCRETION OF THAT TRIBUNAL. 5 (3) THE APPELLATE TRIBUNAL SHALL SEND A COPY OF AN Y ORDERS PASSED UNDER THIS SECTION TO THE ASSESSEE AND TO THE PRINC IPAL COMMISSIONER OR COMMISSIONER (4)SAVE AS PROVIDED IN SECTION 256 OR SECTION 260A, ORDERS PASSED BY THE APPELLATE TRIBUNAL ON APPEAL SHALL BE FINAL. 7. THE DIFFERENT ISSUES RAISED IN THE M.A. AND THE ADJUDICATION THEREOF IS AS UNDER: (I) PARA NO. 6. THAT THIS HONBLE TRIBUNAL RELIED U PON THE CBDT O.M NO. 404/72/93-ITCC DATED 29/02/2016 AND THE FACT TH AT THE ASSESSEE HAS PAID 20.38% FOR THE YEARS FOR WHICH THE STAY HA S BEEN SOUGHT, PAID 30.45% ON ALL THE APPEALS PENDING BEFORE THE T RIBUNAL, AND PAID 30.25% ON THE TOTAL OUTSTANDING DEMAND UNDER D ISPUTE, GRANTED THE STAY. WE HEREBY HOLD THAT NO MISTAKE APPARENT FROM RECORD HENCE, NO RECTIFICATION IS REQUIRED. (II) PARA NO. 7 . THAT THE APPELLATE TRIBUNAL IS A CREATURE OF STATUTE WITH POWERS CONFERRED BY THE STATUTE TO PAS S AN ORDER WITHIN THE CONFINES OF STATUTE. THOUGH, THE TRIBUNAL HAS THE POWER TO GRANT STAY, BUT THAT POWER IS TO BE EXERCISED WHEN A STRO NG PRIMA FACIE CASE IS MADE OUT KEEPING IN VIEW THE BALANCE OF CON VENIENCE AND THE IRREPARABLE LOSS AND INJURY WHICH CANNOT BE COM PENSATED LATER ON IN TERMS OF MONEY IF THE STAY IS NOT GRANTED. THE SERMONS OF THE OFFICER OF THE REVENUE HAVE BEEN DULY CONSIDERED. NO RECTIFICATION IS REQUIRED ON THIS IS SUE. 6 (III) PARA NO.8. THAT THIS HON'BLE TRIBUNAL BEING A FINAL FACT FINDING AUTHORITY WAS UNDER A STATUTORY OBLIGATION TO RECOR D REASONS ON THE ISSUES / CONTENTIONS RAISED WHICH ARE SINE-QUA-NON. THE HON'BLE TRIBUNAL THOUGH NOTICED THE RESPECTIVE STANCE OF TH E PARTIES BUT WITHOUT DELIBERATING UPON THE SAME GRANTED THE STAY WHICH IS A MISTAKE WITHIN THE AMBIT OF SUB-SECTION (2) OF SECT ION 254 OF THE INCOME TAX ACT, 1961. THE REASONS FOR ISSUE OF STAY HAVE BEEN MENTIONED A T PAGE NO. 7 & 8 OF THE STAY ORDER. THE STAY ORDER HAS BEEN PA SSED AFTER DULY CONSIDERING THE SUBMISSIONS OF THE PARTIES. SI NCE NO MISTAKE IN THE ORDER COULD BE ESTABLISHED, NO RECTI FICATION IS CALLED FOR. (IV) PARA NO. 9. THAT THIS HON'BLE TRIBUNAL COMMITTED MISTAKE APPARENT ON RECORD IN NOT ANSWERING THE ISSUE SPECI FICALLY RAISED BY THE REVENUE WITH REGARD TO THE FINANCIAL HEALTH OF THE ASSESSEE IN THE CONTEXT OF PRINCIPLES LAID DOWN BY THE HON'BLE COURTS. THE STAY ORDER HAS BEEN PASSED AFTER DULY CONSIDERI NG THE SUBMISSIONS OF BOTH THE PARTIES. SINCE NO MISTAKE I N THE ORDER COULD BE ESTABLISHED, NO RECTIFICATION IS CALLED FOR. (V) PARA NO. 10. THAT THIS HON'BLE TRIBUNAL COMMITTED ANOTHER MISTAKE APPARENT ON RECORD IN ENTERTAINING THE PREM ATURE STAY APPLICATIONS AS THE STAY APPLICATION WAS PENDING BE FORE THE PR. 7 COMMISSIONER OF INCOME TAX AND THE OBJECTION OF MAI NTAINABILITY OF STAY APPLICATIONS BEFORE THIS HON'BLE TRIBUNAL WAS SPECIFICALLY RAISED, THE HON'BLE TRIBUNAL NEITHER DELIBERATED ON THE ISS UE OF MAINTAINABILITY OF STAY APPLICATION NOR RETURNED TH E STAY APPLICATIONS AS PREMATURE, ENTERTAINED THE SAME IN CONTRAVENTION TO THE PROVISION OF THE STATUTE ACCORDING TO WHICH AN ORDER OF STAY COULD ONLY BE PASSED AFTER CONSIDERING THE MERITS O F THE APPLICATION, WHICH IS WANTING AND IS AN ERROR APPARENT WITHIN TH E MISCHIEF OF SUB- SECTION (2) OF SECTION 254 OF THE INCOME TAX ACT, 1 961. IT IS TO BE NOTED THAT THE RELEVANT FACTS HAS BEEN MENTIONED IN PARA NO. 2 OF THE STAY ORDER WHEREIN IT HAS BEEN MENTION ED CLEARLY THAT THE APPEALS OF THE ASSESSEE HAVE BEEN PENDING FOR A DJUDICATION BEFORE THE TRIBUNAL. SINCE NO MISTAKE IN THE ORDER COULD BE ESTABLISHED, NO RECTIFICATION IS CALLED FOR. (VI) PARA NO. 12 THAT THIS HON'BLE TRIBUNAL CONSIDE RED THE CBDT O.M. NO. 404/72/93-ITCC DATED 29.02.2016 ISSUED FOR GRANT OF STAY SUBJECT TO CONDITIONS PRESCRIBED THEREIN AT 1 ST APPELLATE STAGE AND GRANT OF STAY IN VIEW OF AFORESAID O.M. IS A MISTAK E APPARENT ON THE FACE OF IT. THE PRAYER FOR STAY OF DEMAND WAS NOT S OUGHT AT THE 1 ST APPELLATE STAGE. THE CBDT O.M.S / CIRCULARS ARE NOT BINDING ON THE APPELLATE TRIBUNALS / COURTS. NEITHER THE O.M. INTE NDS NOR PROVIDES THE POWER TO THE TRIBUNAL TO GRANT STAY. 8 THOUGH THE CBDT CIRCULAR IS NOT BINDING ON THE TRIB UNAL BUT ARE NEVERTHELESS BINDING ON THE DEPARTMENT. THE TRIBUNA L HAS GRANTED STAY AFTER CONSIDERING THE OVERALL FACTS AND CIRCUM STANCES OF THE CASE. SINCE NO MISTAKE IN THE ORDER COULD BE ESTABL ISHED, NO RECTIFICATION IS CALLED FOR. (VII) PARA NO. 13. THAT THE AFORESAID DIRECTION GIV EN BY THIS HON'BLE TRIBUNAL IS IN CONTRAVENTION TO THE SCHEME OF SECTION 254 OF THE INCOME TAX ACT, 1961 AS NO ORDER ON THE STAY AP PLICATION COULD BE PASSED WITHOUT CONSIDERING MERITS OF THE APPLICA TION, BESIDES OTHER RESTRAINING FACTORS. THE HON'BLE TRIBUNAL IS NOT VESTED WITH THE POWER TO GRANT STAY FOR A PERIOD EXCEEDING 180 DAYS IN THE FIRST INSTANCE. THE POWERS ASSUMED BY THIS HON'BLE TRIBUN AL ARE INCONSISTENT WITH THE EXPRESS STATUTORY PROVISIONS OF THE ACT AND ITS SCHEME WHICH IS AN ERROR APPARENT ON THE FACE OF IT WITHIN THE MEANING OF SUB-SECTION (2) OF SECTION 254 OF THE IN COME TAX ACT, 1961. REFERRED TO THE ISSUE RAISED AT PARA NO. 11 ABOVE. THE GRANT OF STAY STANDS MODIFIED TO FOR A PERIOD OF 180 DAYS. (VIII) PARA NO. 14. THAT IN VIEW OF THE AFORESAID, THE FOLLOWING ISSUES ARISE WHICH REQUIRE CONSIDERATION / DELIBERATION: A. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE HON'BLE INCOME TAX APPELLATE TRIBUNAL HAS NOT ERRED IN RETURNING T HE STAY APPLICATION(S) AS PRE- 9 MATURE, DURING HAS NOT ERRED IN RETURNING THE STAY APPLICATION(S) AS PRE- MATURE, DURING THE PENDENCY OF ASSESSEE'S STAY APPL ICATION BEFORE THE ADMINISTRATIVE PR. COMMISSIONER OF INCOME TAX? B. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE HON'BLE INCOME TAX APPELLATE TRIBUNAL HAS ERRED IN GRANTING THE STAY IN CONTRAVENTION TO THE SCHEME OF THE STATUTE WITHOUT SPECIFYING THE PE RIOD DURING WHICH THE STAY ORDER SHALL OPERATE? C. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE HON'BLE INCOME TAX APPELLATE TRIBUNAL HAS ERRED IN RELYING UPON THE CBDT O.M. NO. 404/ 72/ 93-ITCC DATED 29.02.2016, THE REVISED GUID ELINES ISSUED BY THE CBDT IN PARTIAL MODIFICATION OF INSTRUCTION NO. 1914 AS THE SAID O.M. PROVIDES GUIDELINES FOR STAY OF DEMAND AT THE FIRST APPEAL STAGE? D. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE HON'BLE INCOME TAX APPELLATE TRIBUNAL HAS ERRED IN NOT RECO RDING THE REASONS WITH REGARD TO FINANCIAL HEALTH IN THE ORDER WHICH IS SI NE-QUA-NON FOR GRANTING THE STAY TO THE ASSESSEE? 8. AS PER THE PROVISIONS OF SECTION 254(2) OF THE I NCOME TAX ACT,1961, THE APPELLATE TRIBUNAL WITH A VIEW TO RECTIFYING ANY MI STAKE APPARENT FROM RECORD, AMEND ANY ORDER CAN AMEND ANY ORDER. HOWEVER, SINCE THE ISSUES RAISED ABOVE(EXCEPT SUB PARA (B) WHICH STANDS ADJUDICATED) DO NOT FALL UNDER THE PURVIEW OF MISTAKE APPARENT FROM RECORD AND HENCE T HE M.A OF THE REVENUE IS TREATED AS DISMISSED ON THESE GROUNDS. 10 9. BEFORE PARTING WE WOULD LIKE TO OBSERVE THAT THE PRESENT PETITION IS MORE OF A PROTEST PETITION. THE LANGUAGE, TONE AND TENOR OF THE M.A IS NOT COMMENSURATING WITH THE ESTABLISHED PROCEDURES DEAL ING WITH APPEALS AND HIGHER FORUMS. THE A.O. INSTEAD OF PLEADING FOR REC TIFICATION OF MISTAKE APPARENT FROM RECORD IN THE M.A BUT TRIED TO VENT HIS DISSAT ISFACTION AGAINST THE STAY ORDER OF THE TRIBUNAL WHICH HAS BEEN PASSED BY DULY CONSI DERING THE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE. THIS TRIBUNAL DULY RECOG NIZES THE ENTHUSIASM OF THE OFFICER IN FILING THE M.A, WHEREIN, HE TRIED TO FIN D THE MISTAKES WHICH ARE NOT EXISTING IN THE ORDER AND CROSSED THE CONTOURS OF HIS OWN JUDICIAL PROPRIETARY. SINCE THE OFFICER WHO FILED THE M.A. IS YOUNG AND J OINED DEPARTMENT IN THE YEAR 2016, NO ADVERSE VIEW IS TAKEN BY THIS TRIBUNAL LEA VING THE RESPONSIBILITY OF GUIDING SUCH ENTHUSIASTIC OFFICER TO THE SUPERVISOR AUTHORITIES SO THAT HIS ENERGIES CAN BE CHANNELIZED IN A PROPER WAY IN THE SERVICE O F THE NATION. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (SANJAY GARG) (DR. B.R.R. KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 09/08/2019 AG COPY TO: 1.THE APPELLANT, 2. THE RESPONDENT, 3. THE CIT(A ), 4. THE CIT, 5. THE DR