DCIT 5 (2)(2), MUMBAI V. VODAFONE INDIA LTD, MUMBAI

MA 352/MUM/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2633 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-08-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: 2011-2012
• Appeal Filed On: 14-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D G
• Keywords: Rectification of order; Application of stay
• Section: 201

Judgement Text

T HE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA ( A M) & SHRI AMARJIT SINGH (JM) M.A. 352/MUM/2019 ARISING OUT OF S. A. NO. 182 /MUM/ 201 9 (ASSESSMENT YEAR 20 11 - 1 2 ) DCIT 5(2)(2) MUMBAI. V S . VODAFONE IDEA LTD. (EARLIER KNOW AS VODAFONE INDIA LTD. ) 10 TH FLOOR, BIRLA CENTURION CENTURY MILLS COMPOUND PLOT NO. 794, PANDURANG BUDHKAR MARG , LOWER PAREL MUMBAI - 400 030. PAN : AAACH5332B ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY NONE DEPARTMENT BY SHRI D.G. PANSARI DATE OF HE ARING 9 . 8 . 201 9 DATE OF PRONOUNCEMENT 19 . 8 . 201 9 O R D E R PER SHAMIM YAHYA (AM) : - BY WAY OF THIS MISCELLANEOUS APPLICATION REVENUE SEEKS RECTIFICATION OF MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL IN STAY APPLICATION NO. 182/MU M/2019 ARISING OUT OF ITA NO 884/MUM/2016 FOR A.Y. 2011 - 12 VIDE ORDER DATED 5.4.2019. REVENUES PLEA IN THE MISCELLANEOUS APPLICATION IS AS UNDER : - 1. THE ABOVE SAID APPEAL HAS BEEN FILED ON 22 FEBRUARY 2016 BY THE ASSESSEE. 2. THE HON'BLE ITAT HAS BEEN PL EASED TO GRANT STAY OF RECOVERY OF DEMAND VIDE ORDER DATED 05.04.2019. 3. IT IS PRAYED THAT STAY ON RECOVERY OF DEMAND MAY KINDLY BE VACATED FORTHWITH FOR THE FOLLOWING REASONS: THE THIRD PROVISO TO THE SECTION 254(2A) READS AS FOLLOWS: 'PROVIDED ALSO THAT IF SUCH APPEAL IS NOT DISPOSED OFF WITHIN THE PERIOD ALLOWED UNDER THE FIRST PROVISO OR THE PERIOD OR PERIODS EXTENDED OR ALLOWED VODAFONE IDEA LTD. 2 UNDER THE SECOND PROVISO, WHICH SHALL NOT, IN ANY CASE, EXCEED THREE HUNDRED AND SIXTY FIVE DAYS, THE ORDER OF STAY SHALL STAN D VACATED AFTER THE EXPIRY OF SUCH PERIOD OR PERIODS EVEN IF THE DELAY IN DISPOSING OF THE APPEAL IS NOT ATTRIBUTABLE TO THE ASSESSEE' IN THE PRESENT CASE, THE HON'BLE ITAT EARLIER GRANTED STAY ON 05.10.2018 WHICH HAS BEEN EXTENDED FOR MORE 180 DAYS VIDE ITS ITAT ORDER DATED 05.04.2019. THE PERIOD OF STAY HAS ALREADY EXCEEDED 365 DAYS . 4. IT IS ALSO PRAYED THAT OUT OF TURN HEARING KINDLY BE GRANTED IN THE PREVIOUSLY MENTIONED APPEAL . 2 . UPON CAREFUL CONSIDERATION WE FIND THAT HON'BLE JURISDICTIONAL HI GH COURT IN THE CASE OF TATA TELE SERVICES MAHARASHTRA LTD. 8 1 TAXMANN.COM 348, HAS HELD AS UNDER THAT TRIBUNAL HAS POWER UNDER THE ACT TO EXTEND THE STAY OF DEMAND IN AN APPEAL PENDING BEFORE IT BEYOND THE PERIOD OF 365 DAYS EVEN AFTER THE INTRODUCTION OF 3RD PROVISO TO SECTION 254(2A). IN THIS REGARD WE MAY GAINFULLY REFER TO PARAGRAPH 6 OF THE ABOVE ORDER. THE SAME READS AS UNDER: 6. IN ANY CASE THE RATIO OF THE DECISION OF THIS COURT IN NARANGOVERSEAS(P) LTD. (SUPRA) WOULD APPLY EVEN TO THE SUBSTITU TED THIRD PROVISO TO SECTION 254(2A) OF THE ACT. THE BASIS OF THE DECISION INNARANG OVERSEAS (P) LTD. (SUPRA) WAS ON THE BASIS OF T HE FOLLOWING: WE HAVE CONSIDERED THE OBJ ECT OF THE AMENDMENT AND BEFORE ANSWERING THE ISSUE, LET US CONSIDER THE POSITI ON OF LAW IN THE MATTER OF GRANT OF INTERIM RELIEF BEFORE THE AMENDMENT. THE POWER TO GRANT INTERIM RELIEF HAS BEEN RECOGNISED BY THE SUPREME COURT [SEE ITO VS. M.K. MOHAMMED KUNHI (1969) 71 ITR 815 (SC)]. WE MAY GAINFULLY REPRODUCE THE FOLLOWING PARAGRAPH : IT IS DIFFICULT TO CONCEIVE THAT THE LEGISLATURE SHOULD HAVE LEFT THE ENTIRE MATTER TO THE ADMINISTRATIVE AUTHORITIES TO MAKE SUCH ORDERS AS THEY CHOOSE TO PASS IN EXERCISE OF UNFETTERED DISCRETION. THE ASSESSEE, AS HAS BEEN POINTED OUT BEFORE, HAS NO RIGHT TO EVEN MOVE AN APPLICATION WHEN AN APPEAL IS PENDING BEFORE THE TRIBUNAL UNDER S.220(6) AND IT IS ONLY AT THE EARLIER STAGE OF APPEAL BEFORE THE AAC THAT THE STATUTE PROVIDE FOR SUCH A MATTER BEING DEALT WITH BY THE ITO. IT IS A FIRMLY ESTABLISHED RULE THAT AN EXPRESS GRANT OF STATUTORY POWER CARRIES WITH IT BY NECESSARY IMPLICATION THE AUTHORITY TO USE ALL REASONABLE MEANS TO MAKE SUCH GRANT EFFECTIVE (SUTHERLAND'S STATUTORY CONSTRUCTION, THIRD EDITION, ARTS.5401AND 5402). THE POWERS WHICH HAVE BEE N CONFERRED BY S.254 ON THE TRIBUNAL WITH WIDEST POSSIBLE AMPLITUDE MUST CARRY WITH THEM BY NECESSARY IMPLICATION ALL POWERS AND DUTIES INCIDENTAL AND NECESSARY TO MAKE THE EXERCI SE OF THOSE POWERS FULLY EFFECTIVE. VODAFONE IDEA LTD. 3 THE SUPREME COURT WHILE DISPOSING OF T HE APPEAL NOTED THAT THE TRIBUNAL IS NOT A COURT, BUT IT EXERCISES JUDICIAL POWERS AND THAT THE TRIBUNAL'S POWERS TO DEAL WITH APPEALS ARE OF THE WIDEST AMPLITUDE AND HAVE IN SOME CASES BEEN HELD SIMILAR TO AN IDENTICAL WITH THE POWERS OF AN APPELLATE COUR T UNDER THE CPC. THE SUPREME COURT QUOTED WITH APPROVAL WHAT JESSEL M.R. SAID ABOUT THE POWERS OF THE COURT OF APPEAL TO GRANT STAY IN POLINI VS.GRAY (1879) 12 CH.D. 438 AND WE QUOTE : IT APPEARS TO ME ON PRINCIPLE THAT THE COURT OUGH T TO POSSESS THAT J URISDICTION, BECAUSE THE PRINCIPLE WHICH UNDERLIES ALL ORDERS FOR THE PRESERVATION OF PROPERTY PENDING LITIGATION IS THIS, THAT THE SUCCESSFUL PARTY IN THE LITIGATION, THAT IS THE ULTIMATELY SUCCESSFUL PARTY, IS TO REAP THE FRUITS OF TH AT LITIGATION, AND N OT OBTAIN M ERELY A BARREN SUCCESS. THAT PRINCIPLE, AS IT APPEARS TO ME, APPLIES AS MUCH TO THE COURT OF FIRST INSTANCE BEFORE THE FIRST TRIAL, AND TO THE COURT OF APPEAL BEFORE THE SECOND TRIAL, AS TO THE COURT OF LAST INSTANCE BEFORE THE HEARING OF THE FI NAL APPEAL. IT WOULD, THEREFORE, BE CLEAR THAT THE POWER TO GRANT STAY OR INTERIM RELIEF HAS TO BE READ AS COEXTENSIVE WITH THE POWER TO GRANT FINAL RELIEF. THE OBJECT BEING THAT IN THE ABSENCE OF THE POWER TO GRANT INTERIM RELIEF THE FINAL RELIEF ITSEL F MAY BE DEFEATE' THIS COURT THEREAFTER FOLLOWED THE DECISION OF THE APEX COURT IN CCE VS. KUMAR COTTON MILLS(P) LTD., (2005(180) ELT 434 (SC)) AND HELD THAT NOTWITHSTANDING THE PRE - SUBSTITUTED THIRD PROVISO TO SECTION 254(2A) OF THE ACT THE TRIBUNAL CONT INUES TO HAVE POWERS TO GRANT INTERIM RELIEF. 7. IN THE ABOVE VIEW THEREFORE, THE RATIO OF THE DECISION IN NARANG OVERSEAS (P) LTD. (SUPRA) WOULD APPLY EVEN IN CASE OF SUBSTITUTED THIRD PROVISO TO SECTION 254(2A) OF THE ACT. 8. IT MAY BE POINTED OU T THAT THE ONLY SUBSTANTIAL DIFFERENCE IN THE PRESUBSTITUTED THIRD PROVISO AND SUBSTITUTED THIRD PROVISO TO SECTION254(2A) OF THE ACT IS THE ADDITION OF THE WORDS EVEN IF DELAY IN DISPOSING OF THE APPEAL IS NOT ATTRIBUTABLE TO THE ASSESSEE THESE ADDITION AL WORDS ADDED IN THE SUBSTITUTED THIRD PROVISO TO SECTION 254(2A) OF THE ACT HAS BEEN STRUCK DOWN BY THE DELHI HIGH COURT IN PEPSI FOODS (P) LTD. VS. ASSTT. CIT[2015]376 ITR 87/57 TAXMANN.COM 337. 9.IN THE ABOVE VIEW, WE SEE NO REASON TO ENTERTAIN THE PETITIONS. ACCORDINGLY, PETITIONS DISMISSED. NO ORDER AS TO COSTS 10 . FURTHERMORE WE NOTE THAT HONBLE APEX COURT IN THE CASE OF PEPSI FOOD PVT.LTD (SUPRA) HAS DISMISSED THE SPECIAL LEAVE PETITION AGAINST HONBLE DELHI HIGH COURT DECISION REFERRED ABOVE . 3 . RESPECTFULLY FOLLOWING THE ABOVE PRECEDENT AND NOTING THAT THE STAY IN THIS CASE IS GRANTED /EXTENDED ON A SPECIFIC FINDING THAT THE HEARING OF THE VODAFONE IDEA LTD. 4 APPEAL WAS NOT DELAYED DUE TO ANY FAULT ATTRIBUTABLE TO ASSESSEE , T HIS MISCELLANEOUS APPLICATION IS DI SMISSED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 19 . 8 . 201 9 . SD/ - SD/ - (AMARJIT SINGH ) (SH A MIM YAHYA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 19 / 8 / 20 1 9 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR ) PS ITAT, MUMBAI