DCIT, Palampur V. M/s Himachal Pradesh Board of School Education, Kangra

MA 124/CHANDI/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2679 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-01-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 09-01-2015
• Assessment Year: 2011-2012
• Appeal Filed On: 20-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Keywords: Application of stay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER M.A.NO.124/CHD/2014 IN STAY APPL.NO.26/CHD/2014 IN ITA NO. 673/CHD/2014 (ASSESSMENT YEAR : 2011-12) THE D.C.I.T., VS. HIMACHAL PRADESH BOARD OF CIRCLE PALAMPUR, SCHOOL EDUCATION, DHARAMSHALA, DISTT. KANGRA. DISTT. KANGRA, H.P. PAN: AAAJH0373H (APPELLANT) (RESPONDENT) APPLICANT BY : SHRI S.K.MITTAL RESPONDENT BY : SHRI AJAY VAIDYA DATE OF HEARING : 09.01.2015 DATE OF PRONOUNCEMENT : 09.01.2015 O R D E R PER BHAVNESH SAINI, J.M. : THIS ORDER SHALL DISPOSE OFF MISCELLANEOUS APPLICA TION FILED UNDER SECTION 254(2) OF THE INCOME TAX ACT BY SHRI D.R.SHARMA, DEPUTY COMMISSIONER OF INCOME TAX, CIRC LE PALAMPUR, HIMACHAL PRADESH. 2. THIS MISCELLANEOUS APPLICATION BY THE DEPARTMENT IS FILED AGAINST THE ORDER OF THE TRIBUNAL DATED 8.8.2014 IN STAY APPLICATION NO.26/CHD/2014 ARISING OUT OF ITA NO.673/CHD/2014 FOR ASSESSMENT YEAR 2011-12. 2 3. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE I.E. HIMACHAL PRADESH BOARD OF SCHOOL EDUCATION, DHARAMS HALA FILED A STAY APPLICATION NO.26/CHD/2014 IN ITA NO.673/CHD/2014 FOR ASSESSMENT YEAR 2011-12 SEEKING STAY AGAINST THE OUTSTANDING DEMAND OF RS.10.16 CRORES. THE TRIBUNAL AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES FOUND THE PRIMA-FACIE CASE FOR GRANT OF STAY OF THE DEMAND AND CONSIDERING THE STATUS OF THE ASSESSEE BEING GOVERN MENT BODY STAYED THE OUTSTANDING DEMAND SUBJECT TO CONDITION OF PAYMENT OF RS.50 LACS ON OR BEFORE 31.8.2014. THE STAY APPLICATION WAS ACCORDINGLY ALLOWED SUBJECT TO THIS CONDITION VIDE ORDER DATED 8.8.2014. 4. THE DCIT, CIRCLE PALAMPUR, H.P. FILED THE PRESEN T MISCELLANEOUS APPLICATION UNDER SECTION 254(2) OF T HE ACT BRIEFLY STATING THEREIN THAT THE DEMAND IN QUESTION ARISES ON ACCOUNT OF DISALLOWANCE OF EXEMPTION UNDER SECTION 10(23C)(IIIAB) OF THE ACT AND ASSURANCE WAS GIVEN B EFORE THE ASSESSING OFFICER ON BEHALF OF THE ASSESSEE TO DEPO SIT 50% OF THE DEMAND. IT IS ALSO ALLEGED THAT THE ASSESSEE HAS OBTAINED STAY WITHOUT MAKING FULL AND TRUE DISCLOSURE AND OR DER OF THE TRIBUNAL IS PREJUDICIAL TO THE INTEREST OF THE REVE NUE AND SINCE THE ASSESSEE HAS AGREED AND GIVEN ASSURANCE F OR PAYMENT OF 50% OF THE DEMAND BEFORE THE ASSESSING O FFICER, THEREFORE, THE ORDER OF THE TRIBUNAL MAY BE RECTIFI ED. 5. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES AND PERUSED THE ORDER OF THE TRIBUNAL IN QU ESTION. AT THE OUTSET, WE MAY NOTE HERE THAT THE MISCELLANEOUS 3 APPLICATION UNDER SECTION 254(2) OF THE ACT WOULD L IE IF AN ORDER UNDER SECTION 254(1) OF THE ACT IS PASSED BY THE TRIBUNAL. IN THIS CASE THE ORDER DATED 8.8.2014 I S PASSED IN STAY APPLICATION WHICH IS INTERIM/INTERLOCATORY IN NATURE. THE STAY ORDER WAS SUBJECT TO CERTAIN CONDITIONS AN D WOULD MERGE WITH THE MAIN ORDER ON DISPOSAL OF THE APPEAL ITSELF. THEREFORE, THE INTERIM ORDER PASSED BY THE TRIBUNAL IN STAY APPLICATION WOULD NOT BE REGARDED AS AN ORDER PASSE D UNDER SECTION 254(1) OF THE ACT. THUS THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE WOULD NOT BE MAINTAINABLE AND WOULD BE DISMISSED AS SUCH. APART FROM THE ABOVE, WE ARE O F THE VIEW THAT THE PRESENT MISCELLANEOUS APPLICATION IS DEVOI D OF MERIT. WHEN THE TRIBUNAL IS SEIZED OF THE APPEAL FILED BY THE ASSESSEE AND THE INTERIM ORDER GRANTING STAY HAS BEEN PASSED , WHATEVER ASSURANCE WAS GIVEN TO THE ASSESSING OFFICER COULD NOT BE SUBJECT MATTER OF THE MISCELLANEOUS APPLICATION. THE ASSESSING OFFICER HAS NO AUTHORITY TO CHALLENGE THE ORDER OF THE TRIBUNAL MERELY ON THE GROUND THAT SOME ASSURAN CE WAS GIVEN BEFORE THE ASSESSING OFFICER. ONCE THE ORDE R ON THE STAY APPLICATION HAS BEEN PASSED BY THE TRIBUNAL, A NY ASSURANCE GIVEN BEFORE THE ASSESSING OFFICER WOULD BE MEANINGLESS AND COULD NOT BE THE SUBJECT MATTER IN THE MISCELLANEOUS APPLICATION. IF THE ASSESSING OFFIC ER WAS NOT SATISFIED WITH THE ORDER OF THE TRIBUNAL, THE REMED Y LIES BEFORE THE HIGHER FORUM TO CHALLENGE THE ORDER OF THE TRIB UNAL BUT NOT IN THE PRESENT FORUM. THE LEARNED COUNSEL FOR ASSESSEE PLACED A COPY OF CHALLAN TO SHOW THAT RS.50 LACS HA VE BEEN 4 PAID AS PER THE DIRECTIONS OF THE TRIBUNAL IN THE S TAY APPLICATION. 6. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUM STANCES ABOVE, IT IS CLEAR THAT THE ASSESSING OFFICER HAS F ILED THE PRESENT MISCELLANEOUS APPLICATION MERELY BECAUSE SO ME ASSURANCE GIVEN BEFORE THE ASSESSING OFFICER WAS NO T COMPLIED WITH. IT WOULD SHOW THAT THE ASSESSING OFFICER HA S SHOWN DELIBERATE DEFIANCE TO THE ORDER OF THE TRIBUNAL AN D SUCH ACT ON BEHALF OF THE ASSESSING OFFICER WOULD BE WHOLLY UNJUSTIFIED AND WE HOPE THAT THE ASSESSING OFFICER WOULD NOT RE PEAT SUCH TYPE OF MISTAKE IN FUTURE. WITH THESE OBSERVATIO NS, WE DO NOT FIND ANY MERIT IN THE MISCELLANEOUS APPLICATION . 7. CONSIDERING THE ABOVE DISCUSSION THE MISCELLANEO US APPLICATION FILED BY THE REVENUE FAILS AND IS DISMI SSED. 8. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE APPLICANT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 9 TH DAY OF JANUARY, 2015. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 9 TH JANUARY, 2015 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH 5