Gati Limited, Hyderabad V. ITO. Ward-2(2), Hyderabad

MA 166/HYD/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8980 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-09-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 19-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMISHA S GUPT
• Keywords: Recovery proceedings
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND S AKTIJIT DEY, JUDICIAL MEMBER M.A. NO.166/HYD/2012 ( IN SA NO.92/H/2012 & ITA NO.542/HYD/12) - A SST. YEAR:2007-08 GATI LIMITED, HYDERABAD. V/S- ITO WARD - 2(2), HYDERABAD. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI Y. RATNAKAR RESPONDENT BY : SMT. AMISHA S. GUPT DATE OF HEARING: 07-09-2012. DATE OF PRONOUN CEMENT: 07-09-2012 O R D E R PER SAKTIJIT DEY, JUDICIAL MEMBER: BY THIS MISC. APPLICATION, THE ASSESSEE IS SEEKI NG THE TRIBUNAL FOR STAY OF FURTHER PROCEEDINGS PERSUANT TO THE ORDER DATED 20-6-2012 PASSED U/S 263 BY THE CIT-II, HYDERABAD PENDING DISPOSED OF THE PRESENT APPEAL. 2. THE LEARNED AR APPEARING FOR THE ASSESSEE REQUES TED FOR GRANTING STAY OF FURTHER PROCEEDINGS IN CONSEQUENCE OF THE ORDER PASSED U/S 263 OF THE ACT. THE LD. AR SUBMITTED THAT THE ITAT HAS INHERENT POW ERS IN GRANTING OF STAY OF PROCEEDING IN CONSEQUENCE OF ORDER PASSED U/S 263 O F THE ACT. THE LEARNED AR SUBMITTED THAT IF THE AO WILL PASS A CONSEQUENTIAL ORDER RAISING A DEMAND, IT WOULD LEAD TO MULTIPLICITY OF PROCEEDINGS. IN SUPPO RT OF SUCH CONTENTION, THE LEARNED AR RELIED UPON A DECISION OF ITAT, HYDERABA D BENCH IN MA NO.16/HYD/97 DATED 10-4-1987 IN THE CASE OF SRI Y.V. ANJANEYULU VS. ITO. M.A.NO.166 OF 2012 GATI LTD., HYD. ======================= 2 3. THE LEARNED DR, ON THE OTHER HAND, STRONGLY ARGU ED AGAINST GRANTING STAY OF FURTHER PROCEEDINGS. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD AND ALSO EXAMINED THE DECISIONS CITED BY THE LD. AR . WE ACCEPT THE FACT THAT THE TRIBUNAL HAS GOT INHERENT POWER TO STAY FURTHER PROCEEDINGS. HOWEVER WHILE GRANTING STAY THE COURT HAS TO CONSIDER THREE FACTORS VIZ., PRIMA FACIE CASE, BALANCE OF CONVENIENCE AND IRREPARABLE INJURY THAT MAY BE CAUSED TO THE PARTY IF STAY IS NOT GRANTED. AS HAS BEEN OBSERVED BY THE HONBLE SUPREME COURT IN THE CASE OF ITO VS. M.K. MOHAMMED KUNHI -7 1 ITR 815 REFERRED TO BY THE ITAT, HYDERABAD BENCH IN THE CASE CITED BY THE L EARNED AR THAT POWER OF STAY BY THE TRIBUNAL IS NOT LIKELY TO BE EXERCISED IN ROUTINE WAY OR AS A MATTER OF COURSE IN VIEW OF THE SPECIAL NATURE OF TAXATION AND REVENUE LAWS. IT WILL ONLY BE WHEN A STRONG PRIMA FACIE CASE IS MADE OUT THAT THE TRIBUNAL WILL CONSIDER WHETHER TO STAY RECOVERY PROCEEDINGS AND O N WHAT CONDITIONS AND THE STAY WILL BE GRANTED IN MOST DESERVING AND APPROPRI ATE CASES WHERE THE TRIBUNAL IS SATISFIED THAT THE ENTIRE PURPOSE OF T HE APPEAL WILL BE FRUSTRATED OR RENDERED NUGATORY BY ALLOWING THE RECOVERY PROCEEDI NGS TO CONTINUE DURING THE PENDENCY OF THE APPEAL THEREFORE, CONSIDERING THE AFORESAID OBSERVATION OF THE HONBLE SUPREME COURT, THE TRIBUNAL BEFORE GRAN TING STAY , HAS TO BE CONVINCED WHETHER THE ASSESSEE HAS MADE OUT A PRIMA FACIE CASE AND BALANCE OF CONVENIENCE IS IN FAVOR OF GRANTING STAY TO THE ASSESSEE. IN THE PRESENT CASE, THE LEARNED AR THOUGH HAS SUBMITTED THAT THE AO HAS INFORMED THE ASSESSEE THAT HE IS GOING TO PASS THE CONSEQUENTIAL ORDER, HOWEVER FROM THE LETTER OF THE AO, WE DO NOT FIND ANY SUCH THING. I N THIS RESPECT, THE ORDERS OF THE ITAT, HYDERABAD BENCH CITED BY THE LEARNED AR IS FACTUALLY DISTINGUISHABLE. IN THAT CASE, THIS TRIBUNAL GRANTED STAY OF FURTHER PROCEEDINGS SINCE THERE WAS UNCERTAINTY OVER THE FINALIZATION OF THE APPEAL PRO CEEDINGS AS THE DEPARTMENT WANTED TO ENGAGE A SENIOR COUNSEL. THEREFORE, ITAT CONSIDERING THE FACT OF THAT CASE GRANTED STAY OF FURTHER PROCEEDINGS. HOWE VER, IN THE PRESENT CASE, NEITHER THERE IS ANY IMMINENT ACTION BY THE AO TO FINALIZE THE PROCEEDINGS IN CONSEQUENCE OF THE ORDER PASSED U/S 263 NOR THE DEP ARTMENT IS AGAINST EARLY M.A.NO.166 OF 2012 GATI LTD., HYD. ======================= 3 HEARING AND DISPOSAL OF THE APPEAL. THEREFORE, STA Y OF FURTHER PROCEEDING CANNOT BE GRANTED ON MERE APPREHENSION ONLY. CONSID ERING THE AFORESAID FACTUAL SITUATION, WE ARE NOT INCLINED TO GRANT STA Y OF FURTHER PROCEEDINGS IN CONSEQUENCE TO THE ORDER PASSED U/S 263 BY THE CIT. HOWEVER, WE ALLOW FOR EARLY HEARING OF THE APPEAL AND DIRECT THE REGISTRY TO POST THIS APPEAL FOR HEARING ON 8-10-2012. THIS CASE IS FIXED FOR HEARING ON 8-10-2012 AND THI S ORDER OF THE TRIBUNAL MAY BE TREATED AS NOTICE OF H EARING AND NO SEPARATE NOTICES WILL BE SENT TO THE PARTIES CONCERNED. WE D IRECT THE ASSESSEE NOT TO TAKE ANY UNNECESSARY ADJOURNMENT ON THE DATE OF HEA RING FIXED. WE ALSO DIRECT THE PARTIES TO FILE PAPER BOOKS, IF ANY, ON OR BEFO RE 25-9-2012. 5 . IN THE RESULT, THE MISC. APPLICATION IS DISMISSED. ORDER WAS PRONOUNCED IN THE COURT ON 07 -09-2012. SD/ - CHANDRA POOJARI SD/- SAKTIJIT DEY ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 07-09-2012. COPY FORWARDED TO: 1. THE PRINCIPAL OFFICER, M/S GATI LTD., 1-7-293, MG R OAD, SECUNDERABAD. 2. THE ITO, WARD-2(2), HYDERABAD. 3. THE ADDL. CIT, RANGE-2, HYDERABAD. 4. THE CIT, HYDERABAD 5. THE DR, ITAT, HYDERABAD JMR* M.A.NO.166 OF 2012 GATI LTD., HYD. ======================= 4