DCIT, Mohali V. M/s Punjab Urban Planning & Development Authority, Mohali

MA 23/CHANDI/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0211 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-04-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 28-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Rectification of order; Application of stay; Revenue expenditure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE SHRI T.R. SOOD, A.M AND MS. SUSHMA CHOWLA, J M MISC. APPLICATION NO. 23/CHD/2013 ARISING OUT OF STAY PETITION NO. 2/CHD/2013 IN ITA NO. 149 /CHD/2013 ASSESSMENT YEAR : 2008-09 D.C.I.T. C-6(1), MOHALI V PUNJAB URBAN DEVELOPMENT AUTHORITY, PUDA BHAWAN SECTOR 62, MOHALI (APPELLANT) (RESPONDENT) APPELLANT BY SHRI AKHILESH GUPTA RESPONDENT BY: SHRI PARIKSHIT AGGARWAL DATE OF HEARING 5.4.2013 DATE OF PRONOUNCEMENT 16.4.2013 O R D E R PER T.R.SOOD, A.M BRIEF FACTS OF THE CASE ARE THAT A SUM OF RS. 225 C RORERS PERTAINING TO CONTRIBUTION MADE BY THE ASSESSEE TOW ARDS DEVELOPMENT OF INTERNATIONAL AIRPORT AT MOHALI WAS CLAIMED AS REVENUE EXPENDITURE WHICH AS DISALLOWED BY THE DEPA RTMENT. THE QUANTUM APPEAL IN THIS REGARD IS PENDING BEFORE THE TRIBUNAL. 100% DEMAND IN RESPECT OF THIS HAS ALREA DY BEEN PAID BY THE ASSESSEE. LATER ON PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT WERE INITIATED AND ULTIMATE PE NALTY @ 150% WAS LEVIED ON THE ASSESSEE. AGAINST THIS ORDER THE ASSESSEE FILED AN APPEAL BEFORE THE TRIBUNAL AND ALSO FILED APPLICATION FOR STAY OF DEMAND. TRIBUNAL GRANTED STAY OF DEMAND IN STAY ORDER PASSED IN STAY PETITION NO. 2/CHD/2013, SUBJE CT TO 2 PAYMENT OF RS. 5 CRORES. AGAINST THIS STAY ORDER TH E REVENUE HAS MOVED THIS MISC. APPLICATION. 2 THE LD. DR FOR THE REVENUE RELIED ON THE CONTENTS OF THE MISC. APPLICATION. 3 ON THE OTHER HAND, THE LD. COUNSEL OF THE ASSESSE E SUBMITTED THAT THE PROVISION FOR PASSING THE ORDER IN A MISC. APPLICATION IN SUB-SECTION (2) OF SECTION 254 IS RE STRICTED ONLY AGAINST THE ORDERS PASSED U/S 254(1) OF THE ACT. S INCE THE STAY ORDER CANNOT BE SAID TO HAVE BEEN PASSED U/S 254(1) OF THE ACT, THEREFORE, THIS APPLICATION WAS NOT MAINTAINA BLE AT ALL. 4 WE HAVE HEARD THE RIVAL SUBMISSIONS CAREFULLY. S ECTION 254(2) OF THE ACT READS AS UNDER: THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN FOU R YEARS FROM THE DATE OF THE ORDER, WITH A VIEW TO RECTIFYI NG ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB-SEC (1) AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE B Y THE ASSESSEE OR THE ASSESSING OFFICER. A PLAIN READING OF ABOVE PROVISION SHOWS THAT THE P ROVISION FOR PASSING RECTIFICATION ORDER IS CONFINED TO THE ORDE R PASSED U/S 254(1) OF THE ACT. SINCE THE STAY ORDER IS NOT PAS SED U/S 254(1), THEREFORE, THE POWER FOR RECTIFICATION OF T HE ORDER IS NOT AVAILABLE TO THE TRIBUNAL. THE RECTIFICATION CAN B E SOUGHT AGAINST THE STAY ORDER ONLY TO THE EXTENT OF WRONG MENTION OF FACTS / FIGURES. THEREFORE, STRICTLY SPEAKING THIS APPLICATION IS NOT MAINTAINABLE BECAUSE THE POWER GIVEN U/S 254(2) CANNOT BE EXTENDED TO THE STAY ORDERS WHICH ARE NOT PASSED U/ S 254(1). 5 IN ANY CASE WE FIND THAT THE REVENUE HAS GIVEN TH E FOLLOWING REASONS FOR FILING OF MISC. APPLICATION. (I) THE ITAT, CHANDIGARH VIDE ORDER DATED 15.2.201 3 IN ITA NO. 149/CHD/2013 HAS STAYED DEMAND OF RS. 99.28 CRORES OUT OF TOTAL DEMAND OF RS. 104.28 CRORES I.E . 3 95.20% OF DEMAND HAS BEEN STAYED BY THE AFORESAID ORDER. THUS, THE QUANTUM OF STAY GRANTED IS VERY H IGH. (II) FURTHER THE DEMAND INVOLVED IN THIS CASE IS VE RY HIGH AND STAYING 95% OF THE DEMAND IS AGAINST THE INTERE ST OF REVENUE KEEPING IN VIEW THE ISSUE HAS ALREADY BEEN DECIDED IN FAVOUR OF DEPARTMENT AT THE IST APPELLAT E STAGE. (III) THIS ISSUE IS NOT COVERED UNDER INSTRUCTION N O. 1914 ISSUED BY CENTRAL BOARD OF DIRECT TAXES, AS THE ADD ITION MADE BY REVENUE WAS CONFIRMED AT THE FIRST APPELLAT E STAGE AND THE SIMILAR ISSUE IS NOT INVOLVED IN ANY OTHER ASSESSMENT YEAR IN THE CASE OF THE ASSESSEE. (IV) THAT AS A MATTER OF PRECEDENT SENT BY THE HON' BLE APEX COURT IN THE CASE OF VODAFONE, THE HON'BLE APE X COURT HAD DECLINED TO INTERFERE IN THE MATTER OF ST AY OF DEMAND. (V) IT IS FURTHER SUBMITTED THAT THE ISSUE OF LEVY OF PENALTY U/S 271(1)(C) OF THE ACT @ 150% OF THE TAX SOUGHT TO BE EVADED HAS BEEN DULY EXPLAINED IN DETAIL IN T HE PENALTY ORDER ITSELF, WHILE CITING REASONS FOR THE SAME. IN LIGHT OF ABOVE, IT IS REQUESTED THAT THE STAY OR DER MAY KINDLY BE REVIEWED AND THE QUANTUM OF STAY GRANTED TO THE ASSESSEE MAY KINDLY BE REDUCED IN FAVOUR OF REVENUE . THE ABOVE CLEARLY SHOWS THAT THE REVENUE HAS NOT P OINTED OUT ANY ERROR IN THE ORDER PASSED BY THE TRIBUNAL I N STAY PETITION NO. 2/CHD/2013 VIDE ORDER DATED 15.2.2013. NO DETAILS OF INSTRUCTION NO. 1914 HAVE BEEN MENTIONED IN MISC. APPLICATION OR WERE BROUGHT TO OUR NOTICE DURING TH E COURSE OF HEARING. THE LD. DR FOR THE REVENUE EVEN DID NOT P OINT OUT WHICH VODAFONE JUDGMENT OF HON'BLE APEX COURT REVEN UE WAS TRYING TO RELY. EVEN COPY OF THE JUDGMENT OR CITAT ION, WAS NOT GIVEN AT THE TIME OF HEARING. WE ARE CONSTRAINED T O OBSERVE THAT THE REVENUE IS SIMPLY TRYING TO MISUSE THE JUD ICIAL PROCESS. THIS FACT FURTHER BECOMES CLEAR FROM THE APPROACH O F THE REVENUE BY PUTTING UP ITS JUNIOR MOST DR I.E. SHRI AKHILESH GUPTA TO ARGUE THIS MATTER WHO HAD NOT BEEN PROPERL Y INSTRUCTED AND HE SIMPLY RELIED ON THE MISC. APPLIC ATION. WE 4 DO NOT APPRECIATE THIS APPROACH. IF THE REVENUE HAS ANY SERIOUS ISSUE THEN THE REVENUE MUST PRESENT ITS CAS E WITH FULL FORCE. IT IS FURTHER OBSERVED THAT CONCLUDING PARA OF THE REVENUES APPLICATION SIMPLY MAKES A PRAYER TO REVI EW THE ORDER AND IT IS SETTLED PRINCIPLE OF LAW THAT THE T RIBUNAL HAS NO POWER TO REVIEW ITS ORDER. IN THESE CIRCUMSTANCES, WE FIND THAT THERE IS NO ERROR IN THE ORDER OF THE TRIBUNAL AND ACCORDINGLY THE MISC. APPLICATION OF THE REVENUE IS REJECTED. 5. IN THE RESULT, MISC. APPLICATION OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 16.4.2013 SD/- SD/- (SUSHMA CHOWLA) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 16.4.2013 SURESH COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT/THE C IT(A)/THE DR