DCIT, Circle-16(1), Hyderabad V. M/s. NMDC Limited, Hyderabad

MA 188/HYD/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0852 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-09-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 12-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER MA NO.187 & 188/HYD/2013 IN MA.NO.87 & 88/HYD/2013 IN S.A.NO.27 & 28/HYD/2013 ARISING OUT OF ITA NO 287 & 288/HYD/2013 ASSESSMENT YEARS 2008-09 & 2009-2010 DCIT, CIRCLE 16(1) HYDERABAD. VS. M/S. NMDC LIMITED HYDERABAD PAN AAACN7325A (APPLICANT) (RESPONDENT) FOR APPLICANT : SHRI YVST. SAI, D.R. FOR RESPONDENT : SHRI LAXMI NIVAS SARMA, A.R. DATE OF HEARING : 30.08.2013 DATE OF PRONOUNCEMENT : 05.09.2013 ORDER PER SMT. ASHA VIJAYARAGHAVAN, J.M. THESE TWO MISCELLANEOUS APPLICATIONS FILED BY THE R EVENUE SEEKING THE RECTIFICATION OF THE ORDER OF THE TRIBU NAL DATED 05.04.2013 IN S.A. NO. 27/HYD/2013 ARISING OUT OF I TA.NO.287 & 288/HYD/2013. 2. LEARNED DR SUBMITTED THAT ON EARLIER OCCASION, T HE ASSESSEE FILED STAY PETITIONS FOR THE ASSESSMENT YEARS 2008- 2009 AND 2009- 2010 VIDE S.A. NO. 27/HYD/2013. THE TRIBUNAL AFTER HEARING THE PARTIES HELD AS FOLLOWS : 2 7. WE HAVE HEARD BOTH THE PARTIES. IN THESE CIRCUMSTANCES, WE FIND THAT THE ASSESSEE HAS GIVEN A PROPOSAL WHILE SEEKING LIFTING OF NOTICE OF ATTACHMENT U/S.226(3), WHEREIN THE ASSESSEE HAS UNDERTAKEN TO PAY THE ENTIRE BALANCE AMOUNT REMAINING OUT OF TAX DEMAND I.E., RS.483.50 BEFORE 26.03.2013. HOWEVER, THERE SEEMS TO BE A GOOD PRIMA FACIE CASE ON MERITS AND THE ASSESSEE HAS ALSO PAID SUBSTANTIAL AMOUNT OF THE TAX DEMANDED, TAKING INTO CONSIDERATION THE BALANCE OF CONVENIENCE IS IN FAVOUR OF THE ASSESSEE, WE DIRECT THE ASSESSEE TO PAY AN AMOUNT OF RS.100 CRORES BEFORE 31 ST OF MARCH, 2013 AND THE BALANCE AMOUNT SHALL BE STAYED TILL THE DISPOSAL OF APPEAL ON 10.06.2013, ON WHICH DATE THE CASE SHALL BE HEARD WITHOUT ANY ADJOURNMENT FROM EITHER SIDE. 3. AGAINST THE AFORECITED ORDER OF THE TRIBUNAL IN S.A.NO. 27 & 28/HYD/2013 IN ITA.NO. 287 & 288/HYD/2013 (A.YS. 20 08-09 & 2009-10), THE DEPARTMENT ONCE AGAIN FILED M.A. NO. 87 & 88/HYD/2013 WHICH WAS DISPOSED OF BY THE TRIBUNAL V IDE ORDER DATED 05 TH APRIL, 2013 AND THE RELEVANT OBSERVATIONS OF THE T RIBUNAL IN THE M.AS READS AS UNDER : 6. WE HAVE HEARD BOTH THE REPRESENTATIVES AND PERUS ED THE MATERIAL ON RECORD. THE CRUX OF THE ARGUMENT OF THE DEPARTMENTAL REPRESENTATIVE IS THAT THE ASSESSEE PROCURED THE STAY ORDER IN THIS CASE BY MISREPRESEN TATION OF FACTS. HOWEVER, THE FACTS RECORDED BY THE TRIBUN AL IN PARA 6 OF STAY ORDER DATED 22 ND MARCH, 2013 SUGGESTS THAT THE TRIBUNAL HAS CONSIDERED THE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE AND GRANTED STAY AND FOR CLARITY WE REPRODUCE PARA-6 OF THE STAY ORDER DATED 22 ND MARCH, 2013 AS FOLLOWS: 1. PARA 6 OF THE LT.A.T. ORDER READS AS FOLLOWS: ((6. THE LEARNED DR SHRI NAYAK BROUQHT TO OUR NOTICE A LETTER DATED 27/02/2013 WHEREIN NMDC LTD. H AS PROPOSED THE FOLLOWING SCHEDULE OF PAYMENT OF DEMAND WHILE STATING 3 THAT THE SCHEDULE PROPOSED BY THEM CAN BE ADHERED TO ONLY AFTER UN FREEZINQ OF THEIR ACCOUNTS WITH THE BANKERS, WHILE REQUESTING FOR WITHDRAWING/CANCELLING THE NOTICE OF ATTACHMENT UNDER SEC. 226(3) ISSUED BY THE DEPARTMENT. BEFORE 15/03/2003 RS.500.00 CRORES BEFORE 26/03/2013 RS.483.50 CRORES 7. FURTHER, THE DOCTRINE OF PROMISSORY ESTOPPELS CANNOT BE APPLIED ON THE BASIS OF CORRESPONDENCE WHICH WAS EXCHANGED BETWEEN THE ASSESSEE AND THE DEPARTMENT. NO PROMISE WAS HELD OUT BY ASSESSEE IN VIEW OF ITS LETTERS. EVEN IF THE ASSESSEE MADE ANY PROMISE, IT IS ON ACCOUNT OF COMPELLING CIRCUMSTANCES. NO PROMISE IS DECIPHERABLE. THE ASSESSEE HAD NOT HELD OUT OR PROMISED THAT IT WOULD NOT APPROACH SUPERIOR FORUM FOR F URTHER REMEDY. IT IS THE PREROGATIVE OF THE ASSESSEE TO APPROACH THE SUPERIOR FOI:L.LIL1S AS PER LAW TO AVAIL THE REQUISITE REMEDY. IN THESE CIRCUMSTANCES, WE CANNOT HOLD THAT: THE ASSESSEE COMMITTED AN ERROR OR SUPPRESSED OR MISREPRESENTED ANY FACTS BEFORE THE TRIBUNAL. THE TRIBUNAL CONSIDERED THE ENTIRE FACTS AND GRANTED THE STAY. 8. LETTER DATED 13.3.2013 IS REPETITION OF THE LET TER DATED 27.2.2013 WHEREIN THE ASSESSEE HAD UNDERTAKEN TO PAY THE BALANCE OF RS.483.50 CRORES IF THE BANK ATTACHMENTS WERE LIFTED BY THE DEPARTMENT. THE LT.A.T. HAS GONE THROUGH THE LETTER DATED 27.2.2013 PRODUCED BY THE LEARNED REPRESENTATIVE OF THE DEPARTMENT MR. NAIK BEFORE GRANTING THE STAY OF THE AMOUNT OF RS.383.50 CRORES. 9. IT IS THE PREROGATIVE OF THE ASSESSEE TO APPROACH HIGHER FORUM SUCH AS I.T.A.T. BEING A HIGHER FORUM IN CASE OF REJECTION OR FOR RE-ADJUSTMENT OF THE INSTALLMENT PAYMENTS MADE BY CCIT . THE ASSESSEE IS NOT ESTOPPED FROM APPROACHING THE TRIBUNAL IF HE IS NOT ABLE TO COMPLY WITH THE DIRECTIONS OF THE CCIT. 10. THE HON'BLE HIGH COURT HAS DIRECTED THE ASSESSEE TO TAKE RECOURSE TO THE ALTERNATIVE 4 REMEDY I.E., TO APPROACH THE TRIBUNAL. HENCE, IT CANNOT BE STATED THAT THE HON'BLE HIGH COURT HAS REJECTED THE CONTENTION OF THE ASSESSEE FOR GRANTING STAY. 11. THE MISCELLANEOUS APPLICATIONS OF THE DEPARTMENT ARE DISMISSED ON THE GROUND THAT THERE HAS NOT BEEN ANY MISREPRESENTATION OF FACTS BY THE ASSESSEE AND THERE IS NO MISTAKE APPARENT ON RECORD IN THE ORDER OF THE TRIBUNAL DATED 22.3.2013 WHEREIN IT HAD DIRECTED PAYMENT OF RS. 100 C RORES BEFORE 31 ST MARCH, 2013 AND STAYED THE BALANCE AMOUNT OF THE DEMAND OF TAX TILL THE DISPOSAL OF THE APPEAL WHICH IS POSTED ON 10.6.2013. 4. LEARNED D.R. SUBMITTED THAT AS OF NOW THERE WOUL D BE A REFUND DUE TO THE ASSESSEE TO THE TUNE OF RS.156.17 CRORES FOR THE A.Y. 2012-13 AND PRAYED THAT THE TRIBUNAL TO GIVE A DIRECTION TO ADJUST THIS REFUND TOWARDS OUTSTANDING DEMAND OF TH E ASSESSEE FOR THE ASSESSMENT YEARS 2008-09 AND 2009-2010 IN THE I NTEREST OF JUSTICE. 5. ON THE OTHER HAND, THE LEARNED A.R. STRONGLY OPP OSED THE ADJUSTMENT OF REFUND DUE AT RS.156.17 CRORES TOWARD S OUTSTANDING DEMAND AS THE DEMAND IS ALREADY STAYED BY THE TRIBU NAL. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. THE PLEA OF THE DEPARTMENT TO ADJUST REFUND DUE AT RS.156.17 CRORES TOWARDS THE OUTSTANDING DEMAND FOR THE ASSESSMENT YEARS 2008-09 AND 2009-2010 AT THIS STAG E IS NOT APPROPRIATE. THE TRIBUNAL ON EARLIER OCCASION WHILE DISPOSING OF THE STAY PETITIONS, CONSIDERING THE ENTIRE FACTS AND CI RCUMSTANCES OF THE CASE AND BALANCE OF CONVENIENCE, HAS DIRECTED THE A SSESSEE TO PAY RS.100 CRORES TOWARDS OUTSTANDING DEMAND AND STAYED BALANCE OF OUTSTANDING AND THE CASE IS ALREADY POSTED FOR HEAR ING ON 30 TH SEPTEMBER, 2013. THE VIEW OF THE TRIBUNAL CANNOT B E REVIEWED AT THIS STAGE FOR THE SAKE OF FACILITATING THE RECOVER Y OF THE OUTSTANDING 5 DEMAND. THE TRIBUNAL CANNOT BE USED AS A MEANS TO R ECOVER THE OUTSTANDING DEMAND BY THE DEPARTMENT. ACCORDINGLY, WE ARE INCLINED TO DISMISS THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE AS DEVOID OF MERITS. 7. IT IS NEEDLESS TO SAY THAT THE APPEAL HAS ALREAD Y BEEN POSTED ON 30.09.2013. THE APPEAL SHALL BE HEARD ON 30.09.2 013 WITHOUT ANY FURTHER ADJOURNMENT ON EITHER SIDE AND NECESSAR Y PAPER BOOKS IF ANY, ARE TO BE FILED WELL IN ADVANCE. 8. IN THE RESULT, MA NO.187 & 188/HYD/2013 OF THE D EPARTMENT ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 05.09.2013. SD/- SD/- (CHANDRA POOJARI) (SMT. ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATE 05 TH SEPTEMBER, 2013. VBP/- COPY TO 1. DCIT, CIRCLE 16(1), HYDERABAD. 2. M/S. NMDC LIMITED, KHANIJ BHAVAN, 10-3-311/A, CA STLE HILLS, MASAB TAN K, HYDERABAD - 500 028. 3. CIT(A)-V, HYDERABAD. 4. CIT-IV, HYDERABAD 5 . D.R. I.T.A.T. B BENCH, HYDERABAD