The DCIT, TDS Circle, Ahmedabad V. M/s. Vodafone West Limited (Formerly known as Vodafone Essar Gujarat Limited), Ahmedabad

MA 15/AHD/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2931 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-04-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 17-04-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 20-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROOP CHAND
• Assessee Lawyers: S N SOPARKAR
• Keywords: Application of stay; Question of law

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD 00 , ! ' #$, % & BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER MA NO.15 AND 16/AHD/2015 IN S.P. NO.85 AND 86/AHD/2014 IN !./ ITA NO. 386 AND 387/AHD/2011 % ) *)/ ASSESSMENT YEAR: 2008-09 AND 2009-10 ACIT, TDS CIRCLE AHMEDABAD. VS M/S.VODAFONE WEST LTD. (FORMERLY KNOWN AS VODAFONE ESSAR GUJARAT LTD. VODAFONE HOUSE CORPORATE ROAD AHMEDABAD 380 015. PAN: AAACF 1190 P +, / (APPELLANT) -. +, / (RESPONDENT) REVENUE BY : SHRI ROOPCHAND, SR.DR ASSESSEE(S) BY : SHRI S.N. SOPARKAR / DATE OF HEARING : 17/04/2015 / DATE OF PRONOUNCEMENT: 29/04/2015 // O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER: THESE TWO MISC. APPLICATION ARE FILED BY THE REVENUE AGAINST THE CO NSOLIDATED ORDER OF THE TRIBUNAL PASSED IN STAY APPLICATION NOS.85 AND 86/AHD/2014 DATED 10.10.2014 EXTENDING THE STAY OF DEMAND TO THE ASSE SSEE FOR FURTHER PERIOD OF THREE MONTHS FROM THE DATE OF ORDER OR DI SPOSAL OF THE APPEAL, WHICHEVER IS EARLIER. 2. THE GRIEVANCE OF THE REVENUE IN THESE MAS IS THA T THE TRIBUNAL HAS EXTENDED STAY BEYOND 365 DAYS, WHICH IS BEYOND THE POWER OF THE TRIBUNAL IN VIEW OF 3 RD PROVISO OF SECTION 254(2A) OF THE ACT. THE SENIOR MA NO.15 AND 16/AHD/2015 2 ADVOCATE, SHRI S.N. SOPARKAR APPEARING ON BEHALF OF THE ASSESSEE, FILED BEFORE US A COPY OF THE ORDER OF THE HONBLE GUJARA T HIGH COURT DATED 9.7.2014 PASSED IN THE CASE OF COMMISSIONER .. APP ELLANT VS. SMALL INDUSTRIES DEVELOPMENT BANK OF INDIA, TAX APPEAL NO .341 OF 2014 & ORS. THE HONBLE HIGH COURT HAS PROPOSED THE FOLLO WING SUBSTANTIAL QUESTION OF LAW: (I) WHETHER THE LEARNED APPELLATE TRIBUNAL HAS JURISDIC TION TO EXTEND THE STAY GRANTED EARLIER BEYOND THE TOTAL PERIOD OF 365 DAYS IN VIEW OF STATUTORY PROVISIONS CONTAINED IN SECTION 35C(2A) OF THE CENTRAL EXCISE ACT, 1944 ? (II) WHETHER EVEN IF IT IS HELD THAT THE LEARNED APPELLA TE TRIBUNAL CAN EXTEND THE STAY GRANTED EARLIER BEYOND THE TOTAL PERIOD OF 365 DAYS, THE LEARNED APPELLATE TRI BUNAL IS REQUIRED TO PASS A SPEAKING ORDER/REASONED ORDER CONSIDERING 3 RD PROVISO TO SECTION 35C(2A) OF THE CENTRAL EXCISE ACT, 1944 ? 3. HE POINTED OUT FROM PAGE NO.12 OF THE SAID ORDER THAT THE HONBLE HIGH COURT AT PARA 4.05 HAS QUOTED ORDER OF THE HON BLE BOMBAY HIGH COURT DATED 30.7.2007 IN THE CASE OF NAVRANG OVERSE AS P. LTD. VS. INCOME TAX APPELLATE TRIBUNAL, MUMBAI RENDERED IN W RIT PETITION NO.1454 OF 2007, BY WHICH, WHILE INTERPRETING PARA-MATERIA PROVISIONS UNDER INCOME TAX ACT, SECTION 254(2A) OF THE ACT, I T WAS HELD THAT IF IT IS FOUND BY THE APPELLATE TRIBUNAL THAT DELAY IN DI SPOSING OF THE APPEAL WITHIN 365 DAYS IS NOT ATTRIBUTABLE TO ASSESSEE, AN D THERE IS NO DELAY TACTICS ADOPTED BY THE ASSESSEE, THE APPELLATE TRIB UNAL CAN EXTEND THE STAY EVEN BEYOND THE TOTAL PERIOD OF 365 DAYS. HE FURTHER REFERRED TO PAGE 14 OF THE SAID ORDER, PARA.5.02 AND SUBMITTED THAT AFTER ANALYZING THE PROVISIONS, THE HONBLE HIGH COURT FINALLY AT P AGE NO.24 PARA 5.06.3 OBSERVED THAT THE DECISION OF THE HONBLE BOMBAY HI GH COURT IN THE CASE OF NARANG OVERSEAS PVT. LTD. VS. THE INCOME TA X APPELLATE TRIBUNAL, WHILE CONSIDERING PARA-MATERIA PROVISION OF SECTION 254(2A) OF INCOME TAX ACT, HAD FOLLOWED THE DECISION OF THE HO NBLE SUPREME COURT IN THE CASE OF COMMISSIONER OF CUST. & C. EXC ., AHMEDABAD VS. MA NO.15 AND 16/AHD/2015 3 KUMAR COTTON MILLS PVT. LTD., 2005 (180) ELT 434 (S C). THE HONBLE HIGH COURT THEN AT PARA 5.07 OF ITS ORDER, AFTER AN ALYZING THE LAW, HAS FINALLY CONCLUDED THAT THE APPELLATE TRIBUNAL MAY E XTEND THE STAY BEYOND THE TOTAL PERIOD OF 365 DAYS FROM THE DATE O F GRANT OF INITIAL STAY AND EVEN THEREAFTER. HE POINTED OUT FROM MISC. PET ITION THAT THE REVENUE HAS CHALLENGED BEFORE THE TRIBUNAL, ONLY TH E POWER OF THE TRIBUNAL TO GRANT THE STAY, WHICH IS NOW COVERED BY THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT. THE DR COULD NO T CITE ANY CONTRARY DECISION BEFORE US. HE ALSO COULD NOT POINT OUT AN Y DISTINGUISHING FEATURES TO SHOW THAT WHY THE DECISION OF THE HONB LE GUJARAT HIGH COURT SHOULD NOT BE FOLLOWED BY THE TRIBUNAL. THER EFORE, WE FIND NO MERIT IN THE MISC. PETITION OF THE REVENUE, AND ACC ORDINGLY, THE SAME ARE DISMISSED. 4. IN THE RESULT, BOTH THE MISC. APPLICATIONS OF TH E REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON WEDNESDAY THE 29 TH APRIL, 2015 AT AHMEDABAD. SD/ SD/- (KUL BHARAT) JUDICIAL MEMBER ( N.S. SAINI) ACCOUNTANT MEMBER