Assistant Commissioner of income tax, Circle-2(1)(2), Bangalore V. M/s.Epson India Private Limited, Bangalore

MA 19/BANG/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6165 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-03-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 30-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P V PRADEEP KUMAR
• Assessee Lawyers: PADAMCHAND KHINCHA
• Keywords: Extension of stay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER A ND SHRI LALIT KUMAR, JUDICIAL MEMBER M.P. NO. 19/BANG/2018 (IN IT(TP)A NO. 293/BANG/2017 ) ASSESSMENT YEAR : 2012 - 13 THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 2(1)(2), BANGALORE. VS. M/S. EPSON INDIA PVT. LTD., 12 TH FLOOR, THE MILLENIA, TOWER A, NO. 1, MURPHY ROAD, ULSOOR, BANGALORE 560 008. PAN: AAACE 7858F APPELLANT RESPONDENT APPELLANT BY : DR. P.V. PRADEEP KUMAR, ADDL. CIT (DR) RESPONDENT BY : SHRI PADAMCHAND KHINCHA, CA DATE OF HEARING : 02 .0 3 .2018 DATE OF PRONOUNCEMENT : 06 . 0 3 .201 8 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS M.P. IS FILED BY THE REVENUE CONTENDING THAT T HERE IS APPARENT MISTAKE IN THE IMPUGNED TRIBUNAL ORDER BECAUSE AS PER THE IMPU GNED TRIBUNAL ORDER, GRANTING OF FURTHER EXTENSION OF STAY BY 114 DAYS A MOUNTS TO GRANTING TOTAL STAY OF 387 DAYS WHICH IS MORE THAN 365 DAYS AND THEREFO RE, IT IS IN EXCESS OF THE SPECIFIED LIMIT OF 365 DAYS AS PROVIDED IN THIRD PR OVISO TO SECTION 254 OF IT ACT AND HENCE, THIS IS AN APPARENT MISTAKE IN THE TRIBU NAL ORDER WHICH SHOULD BE RECTIFIED. 2. IN COURSE OF HEARING OF THE M.P., THE LD. DR OF REVENUE REITERATED THE SAME CONTENTIONS AS RAISED IN THE M. P. AND NOTED ABOVE. THE LD. AR OF ASSESSEE SUBMITTED THAT THERE IS NO MISTAKE IN THE TRIBUNAL ORDER. HE SUBMITTED THAT IN PARA NO. 2 OF THE IMPUGNED TRIBUNAL ORDER, THIS FAC T WAS NOTED BY TRIBUNAL THAT DELAY IN DISPOSAL OF THE APPEAL IS NOT ATTRIBUTABLE TO ASSESSEE AS PER THE M.P. NO. 19/BANG/2018 (IN IT (TP) A NO. 293/BANG/2017) PAGE 2 OF 4 SUBMISSIONS OF LD. AR OF ASSESSEE AND AFTER CONSIDE RING THESE FACTS, THE TRIBUNAL HAS GRANTED EXTENSION OF STAY. HE FURTHER SUBMITTED THAT THERE IS NO SUCH ALLEGATION IN THE PRESENT M.P. OF THE REVENUE THERE IS ANY FACTUAL MISTAKE IN THIS SUBMISSION BY LD. AR OF ASSESSEE NOTED BY T RIBUNAL IN PARA NO. 2 OF THE IMPUGNED TRIBUNAL ORDER. HE SUBMITTED THAT IN VIEW OF THIS UNDISPUTED FACT THAT DELAY IS NOT ATTRIBUTABLE TO ASSESSEE, THE MATTER I S COVERED IN FAVOUR OF THE ASSESSEE BY THE JUDGMENT OF HONBLE DELHI HIGH COUR T RENDERED IN THE CASE OF PEPSI FOODS PVT. LTD. VS. ACIT AS REPORTED IN (2015 ) 376 ITR 87 WHEREIN IT WAS HELD THAT WHERE THE DELAY IN DISPOSAL OF THE APPEAL IS NOT ATTRIBUTABLE TO ASSESSEE, THE TRIBUNAL HAS POWER TO GRANT EXTENSION OF STAY BEYOND 365 DAYS IN DESERVING CASES. HE SUBMITTED A COPY OF TRIBUNA L ORDER OF BANGALORE BENCH IN THE CASE OF VODAFONE MOBILE SERVICES LTD. VS. DC IT IN S.P. NOS. 261 & 262/BANG/2016 DATED 28.06.2017 AND POINTED OUT THAT IN THIS CASE ALSO, THE TRIBUNAL HAS GRANTED EXTENSION OF STAY BEYOND 365 D AYS BECAUSE IN THAT CASE ALSO, THE DELAY IN DISPOSAL OF THE APPEAL WAS NOT A TTRIBUTABLE TO ASSESSEE. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIRST OF ALL, WE REPRODUCE PARA NOS. 2 AND 3 FROM THE IMPUGNED TRIBUNAL ORDER DATED 08.1 2.2017 FOR READY REFERENCE. THE SAME ARE AS UNDER:- 2. IT WAS SUBMITTED BY LD. AR OF ASSESSEE BEFORE U S THAT THE APPEAL WAS ALREADY HEARD BY THE TRIBUNAL ON 26.07.2017 BUT LATER ON, IT WAS RELEASED FOR FRESH HEARING ON 26.10.2017 AND THEREA FTER, IT WAS POSTED FOR HEARING ON 22.11.2017 AND ON THAT DATE, LD. DR OF REVENUE SOUGHT ADJOURNMENT AND NOW THE APPEAL IS FIXED FOR HEARING ON 11.12.2017. HE SUBMITTED THAT UNDER THESE FACTS, I T CAN BE SEEN THAT THE DELAY IN DISPOSAL OF THE APPEAL IS NOT ATTRIBUT ABLE TO THE ASSESSEE AND THEREFORE, EXTENSION OF STAY SHOULD BE GRANTED. THE LD. DR OF REVENUE HAD NOTHING TO SAY UNDER THESE FACTS. 3. CONSIDERING THE FACTS NOTED ABOVE, WE FEEL IT PR OPER TO EXTEND THE STAY UP TO 31.03.2018 OR TILL THE DISPOSAL OF THE A PPEAL WHICHEVER IS EARLIER. THE APPEALS ARE ALREADY FIXED FOR HEARING ON 11.12.2017 BUT WE MAKE IT CLEAR THAT THE ASSESSEE SHOULD NOT SEEK ANY ADJOURNMENT IN THE COURSE OF HEARING OF THIS APPEAL WITHOUT JUS TIFIABLE REASONS AND IF THE ASSESSEE DOES SO THEN THE EXTENSION OF S TAY AS PER THIS TRIBUNAL ORDER SHALL GET VACATED AUTOMATICALLY. M.P. NO. 19/BANG/2018 (IN IT (TP) A NO. 293/BANG/2017) PAGE 3 OF 4 4. IN THE M.P. FILED BY THE REVENUE, THIS IS NOT TH E ALLEGATION OF THE REVENUE THAT DELAY IN DISPOSAL OF THE APPEAL IS ATTRIBUTABLE TO THE ASSESSEE. AS PER THE FACTS NOTED BY THE TRIBUNAL, IN PARA 2 OF THE IMPUGNED TR IBUNAL ORDER AS REPRODUCED ABOVE, IT IS NOTED BY THE TRIBUNAL THAT THE APPEAL WAS ALREADY HEARD ON 26.07.2017 BUT LATER IT WAS RELEASED FOR FRESH HEAR ING ON 26.10.2017 AND THEREAFTER, POSTED FOR HEARING ON 22.11.2017 AND ON THAT DATE, THE LD. DR OF REVENUE SOUGHT ADJOURNMENT AND APPEAL WAS FIXED FOR HEARING ON 11.12.2017. FROM THESE FACTS ALSO, IT CLEARLY COMES OUT THAT TH E DELAY IN DISPOSAL OF THE APPEAL BY THE TRIBUNAL IS NOT ATTRIBUTABLE TO ASSES SEE. HENCE, AS PER THE JUDGMENT OF HONBLE DELHI HIGH COURT RENDERED IN TH E CASE OF PEPSI FOODS PVT. LTD. VS. ACIT (SUPRA), STAY CAN BE EXTENDED BEYOND 365 DAYS IN THOSE CASES WHERE THE DELAY AND DISPOSAL OF THE APPEAL IS NOT A TTRIBUTABLE TO ASSESSEE AND THE CASE DESERVES EXTENSION OF STAY IN THE FACTS OF THAT CASE. 5. IN THE PRESENT CASE THIS IS NOT THE ALLEGATION O F THE REVENUE THAT THE DELAY IN DISPOSAL OF THE APPEAL IS ATTRIBUTABLE TO THE ASSES SEE AND THIS IS ALSO NOT THE CASE OF THE REVENUE THAT THIS IS NOT A FIT CASE FOR EXTENSION OF STAY AND HENCE, WE HOLD THAT UNDER THESE FACTUAL AND LEGAL POSITION S, THERE IS NO APPARENT MISTAKE IN THE IMPUGNED TRIBUNAL ORDER. 6. IN THE RESULT, THE M.P. FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (LALIT KUMAR) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 06 TH MARCH, 2018. /MS/ M.P. NO. 19/BANG/2018 (IN IT (TP) A NO. 293/BANG/2017) PAGE 4 OF 4 COPY TO: 1. APPELLANT 4. CIT (A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.