DCIT 3(1), V. GOLDMAN SACHS (INDIA) SECURITIES P.LTD,

MA 385/MUM/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2546 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-11-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: K
• Assessment Year: 2008-2009
• Appeal Filed On: 22-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Keywords: Application of stay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C, MUMBAI BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER M.A. NO. 353 & 385/MUM/2014 (BOTH ARISING OUT OF ITA NO. 6912/MUM/2012) ASSESSMENT YEAR: 2008-09 DCIT - 3 (1) MUMBAI VS. M/S. GOLDMAN SACHS (INDIA) SECURITIES PVT. LTD. 951-A, RATIONAL HOUSE, APPASAHEB MARATHE MARG, PRABHADEVI MUMBAI- 400 025 PAN: AAFCA 6819 (APPELLANT) (RESPON DENT) ASSESSEE BY : SHRI MADHUR AGAR WAL REVENUE BY : SHRI NEIL PHILIP DATE OF HEARING : 1 4 . 11 . 2014 DATE OF ORDER : 14.11.2014 O R D E R PER BENCH: THE AFORESAID MISCELLANEOUS APPLICATION HAS BEEN F ILED BY THE REVENUE AGAINST TWO SEPARATE ORDERS PASSED IN STAY APPLICATION BY THE TRIBUNAL, FOR EXTENDING THE STAY GRANTED EARLIER. 2. THE MAIN CONTENTION OF THE REVENUE IN THE STAY A PPLICATION IS THAT, THE STAY GRANTED BY THE TRIBUNAL AND EXTENDED TWICE , VIDE ORDER DATED 22.11.2013 AND 16.05.2014, HAS EXCEEDED THE PERIOD OF 365 DAYS, WHICH IS IN VIOLATION OF 2 ND AND 3 RD PROVISO TO SECTION 254 (2A). REFERENCE HAS ALSO BEEN MADE ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE M.A. NO. 353 & 385/MUM/2014 (ARISING OUT OF ITA NO. 6912/MUM/2012) M/S. GOLDMAN SACHS (INDIA) SECURITIES PVT. ASSESSMENT YEAR: 2008-09 2 CASE OF CIT VS. MARUTI SUZUKI INDIA LTD. [(2014) TAXMANN.CO M 166 (DELHI)]. SINCE THE STAY ORDER GRANTED BY THE TRIBUNAL CANNO T EXCEED MORE THAN OF 365 DAYS, THEREFORE, THE STAY SHOULD B E VACATED. 3. BEFORE US THE LD. DR, SUBMITTED THAT, EVEN THE H ONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. ECOM GILL COFFEE TRADING PVT. LTD. [](2012) 209 TAXMAN 190(KAR)], HAS HELD THAT THE TRIBUNAL CANNOT PASS ORDERS GRANTING STAY BEYOND THE PERIOD OF 365 DAYS. THUS THE STAY GRANTED BY THE TRIBUNAL AND EXTENDED FROM TIME TO T IME SHOULD VACATED. 4. ON THE OTHER HAND LEARNED COUNSEL, SHRI MADHUR A GARWAL, SUBMITTED THAT THE PLEA RAISED BY THE REVENUE IN TH E MISCELLANEOUS APPLICATION IS WHOLLY UNWARRANTED, AS HONBLE JURIS DICTION HIGH COURT IN VARIOUS DECISIONS HAS HELD THAT, THE TRIBUNAL HAS T HE POWER TO EXCEED THE STAY EVEN BEYOND THE PERIOD OF 365 DAYS. THE HO NBLE HIGH COURT HAS ALSO TAKEN NOTE OF AMENDMENT MADE IN THE 3 RD PROVISO TO SECTION 254 (2A). IN SUPPORT OF THIS CONTENTION, HE STRONGL Y RELIED UPON DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. RONUK INDUSTRIES LTD. REPORTED IN [(2011) 333 ITR 99]. THIS DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT HAS BEEN FOLLOWED AND REITERATED BY THE SAME HIGH COURT IN VARIOUS DECISIONS. HE ALSO F ILED THE COPY OF BOMBAY HIGH COURT DECISIONS IN THE CASE OF DIT VS. M/S. ST. JUDE MEDICAL INC. I.T.A. NO. 2121, 2122 & 2124 OF 2012 JUDGMENT AND ORDER DATED 01.03.2013 AND IN THE CASE OF DIT VS. M/S. INGRAM MICRO (INDIA) EXPORTS PTE. LTD. I.T.A. NO. 127, 132, 133 & 136 OF 2013 , WHEREIN THE HONBLE HIGH COURT HAS HELD THAT THE ST AY CAN BE EXTENDED EVEN BEYOND PERIOD OF 365 DAYS. M.A. NO. 353 & 385/MUM/2014 (ARISING OUT OF ITA NO. 6912/MUM/2012) M/S. GOLDMAN SACHS (INDIA) SECURITIES PVT. ASSESSMENT YEAR: 2008-09 3 5. AFTER CONSIDERING THE CONTENTIONS RAISED IN THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE AND ALSO THE SUBMI SSIONS MADE BY THE PARTIES, WE FIND THAT HONBLE JURISDICTIONAL HIGH C OURT IN SERIES OF DECISIONS, AS REFERRED IN THE FOREGOING PARA, HAS C ATEGORICALLY HELD THAT THE INCOME TAX APPELLATE TRIBUNAL HAS THE POWER TO EXTEND THE STAY BEYOND THE PERIOD OF 365 DAYS WITHIN THE PROVISIONS OF SECTION 254 (2A) NOTWITHSTANDING THE AMENDMENT BROUGHT IN THE 3 RD PROVISO TO SECTION 254 (2A), BROUGHT BY THE FINANCE ACT, 2008 W.E.F. 1 ST OCTOBER, 2008. IN THE DECISION OF CIT VS. RONUK INDUSTRIES LTD. (SUPR A) AND ALSO IN SUBSEQUENT DECISIONS AS RELIED UPON BY THE LEARNED COUNSEL, THIS PROPOSITION HAS BEEN REITERATED. THUS IN VIEW OF TH E BINDING JUDICIAL PRECEDENCE OF JURISDICTIONAL HIGH COURT, WE DO NOT FIND ANY MERITS IN THE CONTENTION RAISED BY THE REVENUE, ACCORDINGLY THE M ISCELLANEOUS APPLICATION FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 14 TH DAY OF NOVEMBER, 2014. SD/- SD/- (SANJAY ARORA) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 14.11.2014 *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR C BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.