The Assistant Commissioner Of Income Tax, Circle- 1(1), Bangalore V. M/s Hotel Woodside, Mangalore

MA 29/BANG/2020

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2741 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-03-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 03-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A RAMESH KUMAR
• Assessee Lawyers: V SRINIVASAN
• Section: 264

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI A.K.GARODIA, ACCOUNTANT MEMBER AND S HRI PAVAN KUMAR GADALE, JUDICIAL MEMBER M .P. NO. 29 /BANG/2020 (IN ITA NO. 1270 /BANG/20 20 ) (ASS ESSMENT YEAR: 2006 - 07 ) THE A CIT , CIRCLE - 1 ( 1), MANGALURU VS M/S HOTEL WOODSIDE, C/O MOHTISHAM COM P LEXES P.LTD., 6 TH FLOOR, EMPIRE MALL, MG ROAD, MANGALURU APPELLANT RESPONDENT REVENUE BY : SHRI A. RAMESH KUMAR, JCIT ASSESSEE BY : S HRI V. SRINIVASAN, ADVOCATE DATE OF HEARING : 06 - 03 - 2020 DATE OF PRONOUNCEMENT : 17 - 03 - 2020 O R D E R P ER A. K. GARODIA , A M: TH IS MP IS FILED BY THE REVENUE AND IT IS S TA T ED IN THE MP THAT PRIOR TO PASSING OF THE IMPUGNED ORDER BY THE TRIBUNAL IN SP NO.264(B)/2019 ON 27 - 09 - 2019 , STAY WAS GRANTED BY THE TRIBUNAL FOR THREE MONTHS AS PER ITS ORDER DATED 01 - 09 - 2017 AND THEN FOR SIX MONTHS A S PER ITS NEXT ORDER DATED 0 9 - 0 3 - 2018 AND FOR ANOTHER SIX MON THS AS P ER ITS NEXT ORDER DATED 01 - 03 - 2019. IT IS ALSO STATED IN THE MP THAT IN THE C A SE OF CIT VS ECOM GILL COFFEE TRADING PVT. M .P. NO. 29 /BANG/20 20 (IN S. P. NO. 264 /B ANG/201 9 ) PAGE 2 OF 4 LTD., AND M /S B. FOURESS PVT. LTD., IT WAS HELD BY THE HONBLE KARNATAKA HIGH COURT THAT THE TRIBUNAL HAS COMMITTED A POSITIVE ERROR IN CONTINUOUSLY EXTENDING THE INTERIM ORDER OF THE STAY GRANTED IN THE ABOVE APPEAL BEYOND THE PERIOD OF 365 DAYS WHICH IS OUTER LIMIT IN THE STIPULATED PROV ISION. 2. IN THE COURSE OF HEARING LD. DR OF THE REVENUE PLACED RELIANCE ON THE SAME JUDGMENT OF THE HONBLE KARNATAKA HIGH COURT RENDERED IN THE CASE OF CIT VS ECOM GILL COFFEE TRADING PVT. LTD(SUPRA) AND SUBMITTED THAT THIS TRIBUNAL ORDER IS HAVING APPARENT MISTAKE AND IT SHOULD BE RECTIFIED U/ S 25 4 ( 2 ) OF THE ACT. 3. A S AGAINST THIS , IT WAS SUBMITTED BY THE LD.AR OF THE ASSESSEE THAT THERE IS NO MISTAKE IN THE IMPUGNED TRIBUNAL ORDER. HE SUBMITTED A COPY OF THE TRIBUNAL ORDER IN THE C A SE OF M/S SAP LA B S INDIA PVT. LTD. IN SP NO.58(B)/2014 DATED 08 - 01 - 2016 AND DRAWN OUR ATTENTION TO PARA - 21 - 23 OF THIS TRIBUNAL ORDER AND POINTED OUT THAT IN THAT CASE , THE TRIBUNAL HAS DULY CONSIDERED THE JUDGMENT OF THE HONBLE KARNATAKA HIGH COURT RENDERED IN THE CASE OF ECOM GILL COFFEE TRADING PVT. LTD (SUPRA) AND EVEN AFTER THAT, IT WAS NOTED THAT IN THIS CASE , HONBLE KARNATAKA HIGH COURT HAS NOT DEALT WITH THE CONSTITUTIONAL VALIDITY OF THE 3 RD PROVISO TO SEC.254(2 A ) OF THE ACT AND THE HONBLE KARNATAKA HIGH C OURT ONLY HELD THAT THE TRIBUNAL HAS NO POWER TO EXTEND THE STAY BEYOND THE PERIOD OF 365 IN VIEW OF THE 3 RD PROVISO TO SEC.254(2 A ) OF THE ACT. HE FURTHER POINTED OUT THAT IN THE SAME PARA , THE T R IB U NAL HAS FOLLOWED THE JUDGMENT OF HONBLE DELHI HIGH COUR T RENDERED IN THE CASE OF PEPSI FOODS (P) M .P. NO. 29 /BANG/20 20 (IN S. P. NO. 264 /B ANG/201 9 ) PAGE 3 OF 4 LTD VS ACIT 376 ITR 87 WHEREIN IT WAS HELD BY THE HONBLE DELHI HIGH COURT THAT THESE WORDS IN 3 RD PROVISO TO SEC.254(2 A) EVEN IF THE DELAY IN DISPOSING OF THE APPEAL IS NOT ATTRIBUTABLE TO THE ASSESSEE HAS TO BE CONSIDERED AS NOT EXISTING IN THE STATUTE BOOK IN A CASE W H E RE SUCH DEFAULT IS NOT ATTRIBUTABLE TO THE ASSESSEE. HE FURTHER POINTED OUT THAT EVEN AFTER CONSIDERING THE SAID JUDGMENT OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF ECOM GILL COFF EE TRADING PVT. LTD (SUPRA) , THE TRIBUNAL FOLLOWED THE JUDGMENT OF HONBLE DELHI HIGH COURT RENDERED IN THE C ASE OF PEPSI FOODS (P) LTD. (SUPRA) AND TH AT JUDGMENT OF THE HONBLE DELHI HIGH COURT I S NOW APPROVED BY HONBLE APEX COURT ALSO BECAUSE THE SLP FIL ED BY THE REVENUE BEFORE THE HONBLE APEX COURT AGAINST THIS JUDGMENT OF THE HONBLE DELHI HIGH COURT HAD BEEN DISMISSED BY THE HONBLE APEX COURT A S PER THE JUDGMENT REPORTED IN 246 TAXMANN.COM 263(SC) . H E SUBMITTED UNDER THIS LEGAL POSITION, THE TRIBUNAL ORDER IS IN LINE WITH THE JUDGMENT OF THE HONBLE DELHI HIGH COURT APPROVED BY THE HONBLE APEX COURT. HENCE, THERE IS NO APPARENT MISTAKE IN THE IMPUGNED TRIBUNAL ORDER. 4 . W E HAVE CONSIDERED THE RIVAL SUBMISSIONS AND IN VIEW OF THIS LEGAL POSITION AS PER THE JUDGMENT OF THE HONBLE DELHI HIGH COURT RENDERED IN THE C A SE OF PEPSI FOODS PVT. LTD.(SUPRA) WHEREIN IT WAS HELD THAT INSERTION OF THESE WORDS I.E. EVEN IF THE DELAY I N DISPOSING OF THE APPEAL IS NOT ATTRIBUTABLE TO THE ASSESSEE IN 3 RD PROVISO TO SEC.254(2 A ) OF THE IT ACT HAS TO BE CONSIDERED AS NOT EXISTING IN STATUTE BOOK , IT CANNOT BE SAID THAT THERE IS ANY APPARENT MISTAKE IN THE IMPUGNED TRIBUNAL ORDER P ARTICULAR LY, WHEN SLP AGAINST THIS M .P. NO. 29 /BANG/20 20 (IN S. P. NO. 264 /B ANG/201 9 ) PAGE 4 OF 4 JUDGMENT OF THE HONBLE DELHI HIGH COURT HA S BEEN DI S MISSED BY THE HONBLE APEX COURT. WE ORDER ACCORDINGLY. 5. I N THE RESU L T, THE MP FILED BY THE REVENUE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. ( PAVAN KUMAR GADALE ) ( A.K.GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE DATED: MARCH, 2020 A M* COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR