ASST CIT 2(1)(2), MUMBAI V. FULFORD (INDIA) LTD, MUMBAI

MA 160/MUM/2019

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0034 (ITAT-MUMBAI)
• Duration Of Justice: 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-03-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: K
• Assessment Year: 2013-2014
• Appeal Filed On: 06-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANISH KUMAR SINGH
• Keywords: Transfer pricing; Application of stay; Extension of stay; Corroborative evidences; Non passing of speaking order
• Section: 205

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL K BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER M.A. NO.160/MUM./2019 ( ARISING OUT OF ITA NO. 3183 / MUM . /2018 ) ( ASSESSMENT YEAR : 20 13 14 ) ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 2(1)(2), MUMBAI . APPELLANT V/S FULFORD INDIA LTD. 8 TH FLOOR, C 59, G BLOCK BKC BANDRA (E), MUMBAI 400 098 PAN AAACF1795L . RESPONDENT ASSESSEE BY : SHRI MADHUR AGRAWAL REVENUE BY : SHRI MANISH KUMAR SINGH DATE OF HEARING 19 . 0 3 .201 9 DATE OF ORDER 22.03.2019 O R D E R PER SAKTIJIT DEY, J.M. BY THE CAPTIONED APPLICATION, THE REVENUE SEEKS MODIFICATION / VARIATION OF ORDER DATED 26 TH OCTOBER 2018, PASSED BY THE TRIBUNAL IN S.A. NO.484/MUM./2018. 2 . SHRI MANISH KUMAR SINGH, THE LEARNED DEPARTMENTAL REPRESENTATIVE, SUBMITTED , BY A NON SPEAKING ORDER DATED 10 TH 2 FULFORD INDIA LTD. NOVEMBER 2017, THE TRIBUNAL HAS INITIALLY GRANTED STAY RECOVERY OF OUTSTANDING DEMAND WHICH HAS BEEN EXTENDED TWICE ON 4 TH MAY 2018 AND 26 TH OCTOBER 2018. HE SUBMITTED , IN THE PROCESS THE TRIBUNAL HAS GRANTED STAY FOR MORE THAN 365 DAYS WHICH IS IN VIOLATION OF THE PROVISION CONTAINED UNDER SECTION 254(2 A ) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT ). THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED , THE HON'BLE SUPREME COURT IN ASIAN RESURFACING OF ROAD AGENCY PVT. LTD. &ORS. V/S CENTRAL BUREAU OF INVESTIGATION, IN CRIMINAL APPEAL NO.1375 1376/2013 &ORS., JUDGMENT DATED 28 TH MA RCH 2018, HAVE SAID THAT STAY OF PROCEEDINGS BEYOND A PERIOD OF SIX MONTHS CANNOT BE ALLOWED. HE SUBMITTED , GRANTING STAY OF RECOVERY OF OUTSTANDING DEMAND AMOUNTS TO STAY OF PROCEEDINGS. RELYING UPON A DECISION OF THE HON'BLE SUPREME COURT IN ASSTT. COLLECTOR OF CENTRAL EXCISE V/S DUNLOP INDIA LTD., VOL. 1985 AIR 330. HE SUBMITTED , STAY CANNOT BE GRANTED MEREL Y BECAUSE THE PERSON SEEKING STAY HAS MADE OUT PRIMA FACIE CASE. HE SUBMITTED , BALANCE OF CONVENIENCE HAS ALSO TO BE SEEN SINCE IT INVOLVES PUBLIC INTEREST. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED , ON THE PRETEXT OF NON DISPOSAL OF THE APPEAL , WH ICH IS NOT DUE TO THE FAULT OF THE DEPARTMENT, THE ASSESSEE IS SEEKING EXTENSION OF STAY FROM TIME TO TIME. THUS, HE SUBMITTED , THE ORDER DATED 26 TH OCTOBER 2018, EXTENDING STAY SHOULD BE VACATED. 3 FULFORD INDIA LTD. 3 . SHRI MADHUR AGR A WAL, LEARNED AUTHORISED REPRESENTATIVE, SUB MITTED , WHAT THE DEPARTMENT SEEKS BY FILING THE PRESENT APPLICATION IS , REVIEW OF ITS OWN ORDER WHICH IS NOT PERMISSIBLE UNDER THE STATUTE. HE SUBMITTED , IF THE DEPARTMENT IN ANY WAY IS AGGRIEVED WITH THE ORDER OF THE TRIBUNAL, THEY SHOULD HAVE CHALLENGED IT BEFORE THE HIGHER COURT AND NOT BY WAY OF SEEKING REVIEW OF THE EARLIER ORDER. HE SUBMITTED , THE TRIBUNAL HAS POWER TO GRANT STAY EVEN BEYOND 365 DAYS AS PER THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT AS WELL AS HON'BLE DELHI HIGH COURT. IN T HIS CONTEXT, HE RELIED UPON THE DECISION OF THE HONBLE DELHI HIGH COURT IN PEPSI FOODS PVT. LTD. V/S ACIT, [2015] 376 ITR 87 (DEL.) AND THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN CIT V/S TATA TELESERVICES (MAHARASHTRA) LTD., W.P. NO.3437/201 5 &ORS., JUDGMENT DATED 16 TH DECEMBER 2015. FURTHER, HE SUBMITTED , THE DECISION OF THE HON'BLE SUPREME COURT IN ASIAN RESURFACING OF ROAD AGENCY PVT. LTD. &ORS. (SUPRA) IS COMPLETELY IN A DIFFERENT FACTUAL CONTEXT, HENCE, THE PRINCIPLE LAID DOWN THEREIN CA NNOT BE APPLIED TO INCOME TAX PROCEEDINGS. DRAWING OUR ATTENTION TO THE RELEVANT OBSERVATIONS OF THE HON'BLE SUPREME COURT IN THE AFORESAID DECISION, HE SUBMITTED , THE OBSERVATIONS MADE BY THE HON'BLE SUPREME COURT THEREIN ARE IN RELATION TO STAY OF PROCEE DINGS OF CIVIL AND CRIMINAL TRIAL AND HAS NOTHING TO DO WITH STAY OF RECOVERY OF OUTSTANDING DEMAND UNDER INCOME TAX ACT . HE SUBMITTED , THE HON'BLE 4 FULFORD INDIA LTD. JURISDICTIONAL HIGH COURT IN ORACLE FINANCIAL SERVICES SOFTWARE LTD. V/S DCIT, W.P. NO.542/2019, JUDGMENT DA TED 28 TH FEBRUARY 2019, HAVE TAKEN NOTE OF THE AFORESAID DECISION OF THE HON'BLE SUPREME COURT IN ASIAN RESURFACING OF ROAD AGENCY PVT. LTD. &ORS. (SUPRA) AND HELD THAT TH E OBSERVATION OF THE HON'BLE SUPREME COURT THEREIN CANNOT BE IMPORTED TO MATTERS RELA TING TO GRANT OF STAY OF DEMAND UNDER THE INCOME TAX ACT, 1961. AS REGARDS THE CONTENTION OF THE LEARNED DEPARTMENTAL REPRESENTATIVE THAT INITIALLY THE STAY WAS GRANTED BY A NON SPEAKING ORDER, THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , THE FIRST STA Y ORDER WAS PASSED ON 10 TH NOVEMBER 2017 AND THE VALIDITY OF THE SAID STAY ORDER HAS E NDED AFTER EXPIRY OF SIX MONTHS. HE SUBMITTED , THEREAFTER THE BENCH HAVING EXAMINED THE PRIMA FACIE CASE AND BALANCE OF CONVENIENCE HAS EXTENDED STAY ON TWO OCCASIONS. HE SUBMITTED , SINCE THE LAST STAY ORDER PASSED BY THE TRIBUNAL IS STILL IN OPERATION , THE DEPARTMENT CANNOT SEEK REVIEW OF THE ORDER. HE SUBMITTED , WHEN THE LAST STAY ORDER WAS PASSED THE DEPARTMENT NEVER MADE THE SUBMISSIONS NOW MADE BEFORE THE BENCH, HENCE, THE PLEA OF THE DEPARTMENT FOR MODIFICATION/VARIATION OF THE ORDER DATED 26 TH OCTOBER 2018, SHOULD NOT BE ENTERTAINED. HE SUBMITTED , IT IS OPEN TO THE DEPARTMENT TO MAKE THESE SUBMISSIONS WHEN THE ASSESSEE SEEKS EXTENSION OF STAY AGAIN AND AT THAT TIME THE DEPARTMENT CAN ASK FOR MODIFICATION/VACATION OF THE EARLIER ORDERS. FINALLY, THE LEARNED 5 FULFORD INDIA LTD. AUTHORISED REPRESENTATIVE SUBMITTED , WHILE CONSIDERING SIMILAR APPLICATION MADE BY TH E DEPARTMENT IN ANOTHER CASE , THE TRIBUNAL HAS DISMISSED THE APPLICATION AS NOT MAINTAINABLE . IN THIS CONTEXT, HE RELIED UPON THE ORDER OF THE TRIBUNAL IN DCIT V/S M/S. P IRAMAL ENTERPRISE LTD. IN M.A. NO.143/MUM./2019, DATED 15 TH MARCH 2019. 4 . WE HAVE CONSI DERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. AT THE OUTSET, WE PROPOSE TO DEAL WITH LEARNED DEPARTMENTAL REPRESENTATIVES CONTENTION THAT THE ORDER PASSED EXTENDING STAY NEEDS TO BE MODIFIED/VACATED SINCE THE INITIAL ORDER PASSED BY THE TRIBUNAL ON 10 TH NOVEMBER 2017, GRANTING STAY IS A NON SPEAKING ORDER. BEFORE WE PROCEED TO DEAL WITH THE AFORESAID CONTENTION OF THE LEARNED DEPARTMENTAL REPRESENTATIVE, IT IS NECESSARY TO LOOK INTO THE GROUND S MENTIONED IN THE M ISC. A PPLICATION ON THE BASIS OF W HICH THE DEPARTMENT SEEKS VACATION OF THE STAY ORDER: I) THE HONBLE ITAT FIRST GRANTED STAY TILL THE DISPOSAL OF THE APPEAL OR A PERIOD OF 180 DAYS FROM THE DATE OF THE ORDER DTD. 10.11.2017. THE STAY OF DEMAND WAS FURTHER EXTENDED BY ORDERS DTD. 04.05 .2018 & 26.10.2018 (FOR A PERIOD OF 180 DAYS EACH). THE STAY HAS BEEN GRANTED BY HONBLE ITAT FOR MORE THAN 365 DAYS WHICH IS IN CONTRAVENTION OF SECTION 254 (2A) OF THE ACT. II) ON GOING THROUGH THE FINANCIALS OF THE ASSESSEE IT IS SEEN THAT THE ASSESSEE IS IN A POSITION TO PAY THE TAXES. IN VIEW OF THE SAME AND ON MERIT OF THE ADDITIONS, THE DEPARTMENTS CASE IS VERY STRONG. THE DISPUTE RESOLUTION PANEL HAS CONFIRMED THE TRANSFER PRICING ADJUSTMENTS MADE BY THE TPO & ALSO ADDITIONS MADE BY THE A.O. HENCE , THE STAY REQUIRES TO BE REVIEWED. 6 FULFORD INDIA LTD. 5 . AS COULD BE SEEN FROM THE AFORESAID GROUNDS, THE DEPARTMENT HAS NOT SOUGHT VACATION/MODIFICATION OF THE STAY ORDER ON THE GROUND OF NON SPEAKING ORDER PASSED BY THE TRIBUNAL WHILE GRANTING STAY RECOVERY OF DEMAND INITIALLY. MOREOVER, IT IS VERY MUCH CLEAR FROM THE MISC. APPLICATION FILED BY THE DEPARTMENT THAT THEY HAVE SOUGHT VACATION OF THE STAY ORDER PASSED IN S.A. NO.286/MUM./2018, DATED 26 TH OCTOBER 2018 AND NOT THE FIRST STAY ORDER PASSED BY THE TRIBUNAL IN S.A. NO.474/MUM./2017, DATED 10 TH NOVEMBER 2 017. THEREFORE, THE CONTENTION OF THE LEARNED DEPARTMENTAL REPRESENTATIVE AT THIS LATE STAGE THAT THE FIRST STAY ORDER PASSED BY THE TRIBUNAL IS A NON SPEAKING O NE CANNOT BE ACCEPTED. AS REGARDS THE CONTENTION OF THE LEARNED DEPARTMENTAL REPRESENTATIVE THA T AS PER THE DECISION OF THE HON'BLE SUPREME COURT IN DUNLOP INDIA LTD. (SUPRA) THAT WHILE GRANTING STAY PRIMA FACIE CASE IS NOT THE ONLY CRITERIA AND PUBLIC INTEREST IS ALSO TO BE SEEN, WE MAY OBSERVE , THE RATIO LAID DOWN IN DUNLOP INDIA LTD. (SUPRA) IS O N THE BASIS OF ITS OWN FACTS, HENCE, CANNOT BE MADE APPLICABLE TO THE PRESENT CASE. IN ANY CASE OF THE MATTER, IN ASSESSEES CASE THE TRIBUNAL HAS NOT GRANTED ABSOLUTE STAY BUT HAS GRANTED CONDITIONAL STAY OF RECOVERY OF OUTSTANDING DEMAND SUBJECT TO PAYME NT OF ` 3 CRORE. THERE IS NO DISPUTE THAT THE ASSESSEE HAS COMPLIED TO THE AFORESAID DIRECTION. KEEPING IN VIEW THE AFORESAID FACT, THE TRIBUNAL HAS EXTENDED STAY SUBSEQUENTLY , S INCE THERE WAS NO 7 FULFORD INDIA LTD. CHANGE IN CIRCUMSTANCES ON THE BASIS OF WHICH STAY WAS GRANT ED TO THE ASSESSEE INITIALLY. AS REGARDS THE DECISION OF THE HON'BLE SUPREME COURT IN ASIAN RESURFACING OF ROAD AGENCY PVT. LTD. &ORS. (SUPRA), IT NEEDS TO BE OBSERVED , THE OBSERVATIONS MADE BY THE HON'BLE SUPREME COURT IN THE AFORESAID DECISION WAS WITH R EGARD TO STAY OF PROCEEDINGS RELATING TO CIVIL AND CRIMINAL TRIAL. IN THAT CONTEXT, THE HON'BLE SUPREME COURT HAS OBSERVED THAT PROCEEDINGS RELATING TO CIVIL AND CRIMINAL TRIAL SHOULD NOT BE STAYED FOR MORE THAN SIX MONTHS. HOWEVER, IN ASSESSEES CASE WE A RE CONCERNED WITH STAY RECOVERY OF OUTSTANDING DEMAND PENDING DISPOSAL OF THE APPEAL. THE TRIBUNAL HAS ONLY STAYED RECOVERY OF THE OUTSTANDING DEMAND SUBJECT TO CERTAIN CONDITION AND APPEAL PROCEEDINGS HAVE NOT BE EN STAYED. IN FACT, THE HON'BLE JURISDICTIO NAL HIGH COURT IN ORACLE FINANCIAL SERVICES SOFTWARE LTD. (SUPR) HAS NEGATED THE CONTENTION OF THE DEPARTMENT TO THE EFFECT THAT AS PER THE DECISION OF THE HON'BLE SUPREME COURT IN ASIAN RESURFACING OF ROAD AGENCY PVT. LTD. &ORS. (SUPRA) STAY OF RECOVERY O F DEMAND CANNOT BE EXTENDED BEYOND THE PERIOD OF SIX MONTHS. IN THIS CONTEXT, THE OBSERVATIONS OF THE HON'BLE JURISDICTIONAL HIGH COURT ARE AS UNDER: 4. WE ARE PRIMA FACIE OF THE VIEW THAT THE REVENUE AUTHORITIES COMMITTED SERIOUS ERROR. AGAINST THE TOT AL DEMAND ARISING OUT OF THE ORDER OF ASSESSMENT OF RS. 205 CRORE, THE ASSESSING OFFICER HAS ALREADY RECOVERED A TOTAL OF RS. 140 CRORES BY NOW THROUGH DIFFERENT MEANS. THERE IS NO ALLEGATION THAT THE 8 FULFORD INDIA LTD. PETITIONER IS RESPONSIBLE FOR DELAY IN DISPOSAL OF THE APPEAL BEFORE THE COMMISSIONER. MERELY RELYING UPON THE DECISION OF THE SUPREME COURT IN THE CASE OF ASIAN RESURFACING OF ROAD AGENCY PVT LTD (SUPRA), REVENUE AUTHORITIES NOW HELD A BELIEF THAT ANY STAY AGAINST THE RECOVERY GRANTED WOULD AUTOMATICALLY LAPS E AFTER SIX MONTHS. THIS IS NEITHER THE PURPORT OF THE JUDGMENT OF THE SUPREME COURT, NOR THE OBSERVATIONS MADE IN THE SAID JUDGMENT IN THE CONTEXT OF CIVIL AND CRIMINAL LITIGATION CAN BE IMPORTED IN PRESENT SET OF QUASI JUDICIAL PROCEEDINGS. THE POWER OF THE ASSESSING OFFICER TO REVIEW THE SITUATION EVERY SIX MONTHS, WOULD NOT AUTHORIZED HIM TO LIFT THE STAY PREVIOUSLY GRANTED AFTER FULL CONSIDERATION AND INSIST ON FULL PAYMENT OF TAX WITHOUT THE ASSESSEE BEING RESPONSIBLE FOR DELAY IN DISPOSAL OF THE APPE AL OR ANY OTHER SUCH SIMILAR MATERIAL CHANGE IN CIRCUMSTANCES. 6 . FURTHER, IF THE DEPARTMENTS PLEA THAT AS PER THE DECISION OF THE HON'BLE SUPREME COURT IN ASIAN RESURFACING OF ROAD AGENCY PVT. LTD. & ORS. (SUPRA), STAY OF RECOVERY OF DEMAND CANNOT BE GRANTED FOR MORE THAN SIX MONTHS IS ACCEPTED, THE THIRD PROVISO TO SECTION 254(2A) OF THE ACT WILL BECOME OTIOSE. 7 . NOW , REVERTING BACK TO THE ISSUE WHETHER THE TRIBUNAL CAN GRANT STAY RECOVERY OF DEMAND B EYOND THE PERIOD OF 365 DAYS , THE ISSUE HAS PASSED JUDICIAL SCRUTINY ON A NUMBER OF OCCASIONS. THE HONBLE DELHI HIGH COURT IN PEPSI FOODS PVT. LTD. (SUPRA), AFTER TAKING NOTE OF THE AMENDMENT BROUGHT TO THE THIRD PROVISO TO SECTION 254(2A) BY FINANCE ACT, 2008, W.E.F. 1 ST APRIL 2008, HAS HELD THAT THE TRIBUNAL HAS POWER TO GRANT STAY FOR A PERIOD EXCEEDING 365 DAYS IF THE DELAY IN DISPOSAL OF THE APPEAL IS NOT ATTRIBUTABLE TO THE ASSESSEE. FOLLOWING THE AFORESAID DECISION OF THE HON'BLE DELHI HIGH COURT, T HE HON'BLE JURISDICTIONAL 9 FULFORD INDIA LTD. HIGH COURT IN TATA TELESERVICES (MAHARASHTRA) LTD. (SUPRA), HELD THAT THE TRIBUNAL HAS POWER TO GRANT STAY BEYOND A PERIOD OF 365 DAYS. THOUGH , IT MAY BE A FACT THAT THE DELAY IN DISPOSAL OF CORRESPONDING APPEAL MAY NOT BE ATTRIBU TABLE TO THE DEPARTMENT, AT THE SAME TIME, NON DISPOSAL OF THE APPEAL CANNOT BE ATTRIBUTED TO THE ASSESSEE ALSO. FURTHER, DEPARTMENTS CONTENTION THAT THE FINANCIAL POSITION OF THE ASSESSEE IS GOOD IS NOT BACKED BY ANY SUPPORTING EVIDENCE. BE THAT AS IT MA Y, WHILE EXTENDING THE STAY VIDE ORDER DATED 26 TH OCTOBER 2018, THE TRIBUNAL HAS TAKEN NOTE OF THE ATTENDING FACTS AND CIRCUMSTANCES WHICH IS EVIDENT FROM THE FACTS NARRATED IN PARA 2 OF THE ORDER. THAT BEING THE CASE, THE DECISION SO TAKEN BY THE TRIBUNAL CANNOT BE SUBJECT MATTER OF REVIEW BY THE TRIBUNAL. I F THE DEPARTMENT , IN ANY MANNER , WAS AGGRIEVED WITH THE AFORESAID ORDER OF THE TRIBUNAL, THEY COULD HAVE APPROACHED THE HIGHER COURT SEEKING APPROPRIATE RELIEF/REMEDY INSTEAD OF FILING A MISC. APPLICATI ON SEEKING REVIEW OF THE ORDER PASSED BY THE TRIBUNAL. 8 . AT THIS STAGE , WE MUST OBSERVE , WHEN THE INCOME TAX APPELLATE TRIBUNAL IS FACED WITH STIFF CHALLENGE TO REDUCE THE HUGE PENDENCY OF LITIGATION S, SUCH FRIVOLOUS AND ILL CONCEIVED APPLICATION S, LIKE THE PRESENT MISC. APPLICATION , DO NOT BENEFIT ANYONE, RATHER, IT RESULTS IN UNNECESSARY WASTAGE OF VALUABLE TIME OF THE COURT WHICH COULD OTHERWISE HAVE BEEN GAINFULLY UTILIZED IN MORE PRODUCTIVE AND 10 FULFORD INDIA LTD. CONSTRUCTIVE JUDICIAL WORK. IT IS RELEVANT TO OBSE RVE , WHILE DEALING WITH A SIMILAR APPLICATION FILED BY THE DEPARTMENT , LIKE THE PRESENT MISC APPLICATION, THE TRIBUNAL IN PIRAMAL ENTERPRISE LTD. (SUPRA) AFTER CONSIDERING ALMOST SIMILAR ARGUMENT ADVANCED BY THE DEPARTMENT , AS WAS ADVANCE D IN THE PRESENT C ASE , HAS DISMISSED THE MISC. APPLICATION FILED BY THE DEPARTMENT HOLDING AS UNDER: 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND GIVEN THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE HAVE GONE THROUGH THE SAID ORDER IN THE STAY APPLICATION NO. 453/MUM/ 2018 FOR A.Y. 2011 - 12 DATED 04.12.2018 AND NOTED THAT THE TRIBUNAL HAS CATEGORICALLY NOTED A FINDING OF FACT THAT APPEALS FOR ASSESSMENT YEARS 2009 - 10, 2010 - 11 AND APPEAL FOR A.Y. 2011 - 12 WAS FIXED FOR HEARING ON VARIOUS DATED BUT THE MATTER WAS ADJOURNED ON ACCOUNT OF WANT OF TIME OR ANY OTHER REASON. THE ASSESSEE CANNOT BE FAULTED AT THIS STAGE OR NON - DISPOSAL OF APPEAL CANNOT BE ATTRIBUTED TO THE ASSESSEE. IN TERMS OF THIS THE STAY WAS EXTENDED FOR FURTHER 180 DAYS FROM DATE OF ORDER, I.E. 04.12.2018 AND THE APPEAL FOR A.Y. 2011 - 12 WAS FIXED FOR HEARING ON 31.01.2019. THIS APPEAL WAS ADJOURNED TO 03.04.2019 DUE TO PAUCITY OF TIME AS THE APPEAL FOR A.Y. 2009 - 10 WAS HEAD ON THAT VERY DAY AND THE ORDER IS RESERVED AND AWAITED AS INFORMED BY THE LEARNED COUNS EL FOR THE ASSESSEE. WE HAVE GONE THROUGH THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE PEPSI FOOD (P) LTD. (SUPRA) AND CONSCIOUS OF THE FACT THAT THE HON'BLE DELHI HIGH COURT HAS STRUCK DOWN THE ADDITION OF EXPRESSION BY VIRTUE OF FINANCE ACT, 2008 BY HOLDING THE SAME AS VIOLATIVE OF NON - DISCRIMINATORY CLAUSE OF ARTICLE 14 OF THE CONSTITUTION OF INDIA. THE SAID EXPRESSION WAS INTRODUCED BY FINANCE ACT, 2008 AND THE EXPRESSION WAS THAT, EVEN IF THE DELAY IN DISPOSING OF THE APPEAL IS NOT ATTRIBU TABLE TO THE ASSESSEE, THE SAME WAS STRUCK DOWN AND THIS WAS FURTHER INTERPRETED BY THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF NARANG OVERSEAS (P) LTD. (SUPRA). AS REGARD THE EXTENSION OF STAY BEYOND 365 DAYS THE HON'BLE BOMBAY HIGH COURT HAS CATEGORICA LLY CONSIDERED THIS DECISION IN THE CASE OF TATA TELESERVICES (MAHARASHTRA) LTD. (SUPRA) AND HELD THAT THIS COURT (HON'BLE BOMBAY HIGH COURT) HAS CONSISTENTLY TAKEN A VIEW THAT THE TRIBUNAL HAS POWERS TO EXTEND STAY EVEN AFTER SUBSTITUTION OF 3RD PROVISO T O SECTION 254(2A) OF THE ACT. EVEN THIS FACT IS 11 FULFORD INDIA LTD. CLEAR FROM VARIETY OF CASE LAW REFERRED TO ABOVE AND DISCUSSED ABOVE. AS REGARDS THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF ASIAN RESURFACING OF ROAD AGENCY P. LTD. (SUPRA) WE NOTED THAT THE CONT EXT OF THE ISSUE BEFORE THE HON'BLE SUPREME COURT WAS CRIMINAL JURISDICTION REGARDING THE PREVENTION OF CORRUPTION ACT AND THE CASES PENDING AT TRIAL STAGE AND THE PROCEEDINGS STAYED BY THE HON'BLE HIGH COURT. THIS ISSUE HAS BEEN DEALT WITH BY THE HON'BLE SUPREME COURT IN THE CASE OF ASIAN RESURFACING OF ROAD AGENCY P. LTD. VIDE PARAS 36 & 37 AS UNDER: - 36. THUS, WE DECLARE THE LAW TO BE THAT ORDER FRAMING CHARGE IS NOT PURELY AN INTERLOCUTORY ORDER NOR A FINAL ORDER. JURISDICTION OF THE HIGH COURT IS NO T BARRED IRRESPECTIVE OF THE LABEL OF A PETITION, BE IT UNDER SECTIONS 397 OR 482 CR.P.C. OR ARTICLE 227 OF THE CONSTITUTION. HOWEVER, THE SAID JURISDICTION IS TO BE EXERCISED CONSISTENT WITH THE LEGISLATIVE POLICY TO ENSURE EXPEDITIOUS DISPOSAL OF A TRIAL WITHOUT THE SAME BEING IN ANY MANNER HAMPERED. THUS CONSIDERED, THE CHALLENGE TO AN ORDER OF CHARGE SHOULD BE ENTERTAINED IN A RAREST OF RARE CASE ONLY TO CORRECT A PATENT ERROR OF JURISDICTION AND NOT TO RE - APPRECIATE THE MATTER. EVEN WHERE SUCH CHALLENG E IS ENTERTAINED AND STAY IS GRANTED, THE MATTER MUST BE DECIDED ON DAY - TO - DAY BASIS SO THAT STAY DOES NOT OPERATE FOR AN UNDULY LONG PERIOD. THOUGH NO MANDATORY TIME LIMIT MAY BE FIXED, THE DECISION MAY NOT EXCEED TWO - THREE MONTHS NORMALLY. IF IT REMAINS PENDING LONGER, DURATION OF STAY SHOULD NOT EXCEED SIX MONTHS, UNLESS EXTENSION IS GRANTED BY A SPECIFIC SPEAKING ORDER, AS ALREADY INDICATED. MANDATE OF SPEEDY JUSTICE 37 APPLIES TO THE PC ACT CASES AS WELL AS OTHER CASES WHERE AT TRIAL STAGE PROCEEDINGS ARE STAYED BY THE HIGHER COURT I.E. THE HIGH COURT OR A COURT BELOW THE HIGH COURT, AS THE CASE MAY BE. IN ALL PENDING MATTERS BEFORE THE HIGH COURTS OR OTHER COURTS RELATING TO PC ACT OR ALL OTHER CIVIL OR CRIMINAL CASES, WHERE STAY OF PROCEEDINGS IN A PE NDING TRIAL IS OPERATING, STAY WILL AUTOMATICALLY LAPSE AFTER SIX MONTHS FROM TODAY UNLESS EXTENDED BY A SPEAKING ORDER ON ABOVE PARAMETERS. SAME COURSE MAY ALSO BE ADOPTED BY CIVIL AND CRIMINAL APPELLATE/ REVISIONAL COURTS UNDER THE JURISDICTION OF THE HI GH COURTS. THE TRIAL COURTS MAY, ON EXPIRY OF ABOVE PERIOD, RESUME THE PROCEEDINGS WITHOUT WAITING FOR ANY OTHER INTIMATION UNLESS EXPRESS ORDER EXTENDING STAY IS PRODUCED. 37. THE HIGH COURTS MAY ALSO ISSUE INSTRUCTIONS TO THIS EFFECT AND MONITOR THE SA ME SO THAT CIVIL OR CRIMINAL PROCEEDINGS DO NOT REMAIN PENDING FOR UNDULY PERIOD AT THE TRIAL STAGE. 12 FULFORD INDIA LTD. THIS WAS ALSO CONFRONTED TO THE LEARNED SR. D.R., WHERE THEY HAVE RAISED THE ISSUE OF EXCEEDING 365 DAYS BEFORE THE TRIBUNAL AT THE TIME OF EXTENSION OF THE SAY VIDE ORDER DATED 04.12.2018, THE LEARNED SR. D.R. COULD NOT REPLY TO THE SAME. WE NOTED THAT THIS JUDGEMENT OF HON'BLE SUPREME COURT WILL NOT HELP THE REVENUE FOR THE REASON THAT EVEN THE LEGISLATURE IN THIS PROVISION OF SECTION 254(2A) INTRODUCED THIRD PROVISO VIDE FINANCE ACT, 2008 AND ALLOWED THE PERI OD FOR GRANTING OF STAY NOT EXCEEDING 365 DAYS IN NORMAL CIRCUMSTANCES. HENCE THE LEGISLATURE WAS CONSCIOUS OF THE FACT THAT THERE ARE CIRCUMSTANCES WHERE STAY HAS TO BE GRANTED BEYOND SIX MONTHS AS THE FACTS REQUIRES IN THE EXCEPTIONAL CASES. WE HAVE GONE THROUGH THE SAID ORDER AND NOTICED THAT NO SUCH PLEA WAS PLACED BEFORE THE TRIBUNAL AT THE TIME OF HEARING OR FROM RECORD WE COULD NOT TRACE SUCH ARGUMENTS OR PLEA. HENCE TAKING INTO CONSIDERATION ALL THE FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW THAT T HE HON'BLE HIGH COURT HAS STRUCK DOWN THE EXPRESSION, EVEN IF THE DELAY IN DISPOSING OF THE APPEAL IS NOT ATTRIBUTABLE TO THE ASSESSEE AS SUBSTITUTED BY 3RD PROVISO TO SECTION 254(2A) OF THE ACT AND TAKEN A VIEW THAT THE TRIBUNAL HAS POWER TO EXTEND STAY EVEN BEYOND 365 DAYS AND EVEN AFTER THE SUBSTITUTION OF 3RD PROVISO TO SECTION 254(2A) OF THE ACT. HENCE, RESPECTFULLY FOLLOWING THE ABOVE REFERRED DECISIONS, DISCUSSING LEGAL POSITIONS, WE DISMISS THIS MISCELLANEOUS APPLICATION OF THE REVENUE. 9 . F A CTS BEING IDENTICAL, RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF THE CO ORDINATE BENCH, WE DISMISS THE MISC. APPLICATION FILED BY THE REVENUE. 10. IN THE RESULT, MISC. APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22.03.2019 SD/ MANO J KUMAR AGGARWAL ACCOUNTANT MEMBER SD/ SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 22.03.2019 13 FULFORD INDIA LTD. COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (SR. PRIVATE SECRETARY) ITAT, MUMBAI