THE MAHARASHTRA HOUSING AND AREA DEVELOPEMENT AUTHORITY, V. DDIT (MHADA) (E)1(1),

MA 436/MUM/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1444 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-01-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 03-12-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PARMINDER; RAJIV NABAR
• Assessee Lawyers: S E DASTUR
• Keywords: Application of stay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI B BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI VIJAY PAL RAO, JM & SHRI N. K. BILLAIYA , AM MISCELLANEOUS APPLICATION NO. 436/MUM/2013 ( ARISING FROM SA NO. 293/MUM/2013 A. Y - 2010-11 IN ITA NO. 6678/M/2013 ) THE MAHARASHTRA HOUSING & AREA DEVELOPMENT AUTHORITY (MHADA), GRIHA NIRMAN BHAVAN, BANDRA (E), MUMBAI-400051 VS THE DY. DIRECTOR OF INCOME TAX (EXEMPTION)-1(I), ROOM NO. 504, 5 TH FLOOR, PIRAMAL CHAMBER, LOWER PAREL, MUMBAI-400012 (APPLICANT) (RESPONDENT) PAN NO. AAAJM0344H ASSESSEE BY SHRI S. E. DASTUR & SHRI NISHANT THAKKA R REVENUE BY SHRI RAJIV NABAR & SMT. PARMINDER DATE OF HEARING 17 TH JANUARY 2014 DATE OF PRONOUNCEMENT 22 ND JANUARY 2014 ORDER PER VIJAY PAL RAO, JM BY WAY OF THIS MISCELLANEOUS APPLICATION BY THE AS SESSEE IS SEEKING RECTIFICATION IN THE STAY ORDER DATED 25.11.2013 OF THIS TRIBUNAL. 2. THE LD. SENIOR COUNSEL HAS SUBMITTED THAT WHILE PASSING THE IMPUGNED ORDER THE TRIBUNAL HAS NOT CONSIDERED THE STAY OF RECOVERY OF DEMAND ON THE REASON THAT THE WRIT PETITION FILED B Y THE ASSESSEE BEFORE THE HONBLE HIGH COURT IS PENDING. THE LD. COUNSEL HAS POINTED OUT THAT THE WRIT PETITION FOR STAY OF RECOVERY FILED BY THE ASSESSEE WAS FOR THE PERIOD OF PENDENCY OF THE APPEAL BEFORE THE CIT(A) AND ONCE THE CIT(A) HAS PASSED THE ORDER, THE WRIT PETITION FILED BY TH E ASSESSEE WILL HAVE NO CONSEQUENCE AND MAY BE TREATED AS INFRUCTUOUS. HE H AS THUS, AGUED THAT THE TRIBUNAL HAS PASSED THE ORDER BY ASSUMING WRONG FACTS THAT THE MA 436/M/2013 MAHARASHTRA HOUSING & AREA DEVELOPMENT AUTHORITY 2 SUBJECT MATTER IS SUBJUDICE BEFORE THE HONBLE HIGH COURT WHEREAS ONCE THE APPEAL OF THE ASSESSEE WAS DISPOSED OFF BY THE CIT(A) THE SUBJECT MATTER IS NO MORE SUBJUDICE BEFORE THE HONBLE HIGH COURT. THUS, NON- GRANT OF STAY BY ASSUMING WRONG FACTS CONSTITUTES A N APPARENT MISTAKE ON RECORD REQUIRES TO BE RECTIFIED. IN SUPPORT OF HIS CONTENTION HE HAS RELIED UPON THE DECISION OF DECISION OF HONBLE SUPREME CO URT IN CASE OF HONDA SIEL POWER PRODUCTS LTD. VS CIT 295 ITR 466 AND SUB MITTED THAT IT IS THE DUTY OF THE TRIBUNAL TO SET RIGHT THE MISTAKE, ERRO R OR OMISSION OCCURRED IN THE IMPUGNED ORDER. HE HAS ALSO RELIED UPON THE FOL LOWING DECISIONS: I) MAHENDRA MILLS LTD. VS P. B. DESAI, APPELLATE AS SISTANT COMMISSIONER OF INCOME TAX & ANR. 99 ITR 135 (SC) II) CIT VS SHAKUNTALA RAJESHWAR 160 ITR 840 (DEL) III) CIT VS DR. T. K. JAIRAJ 256 ITR 252 (KER) 3. BY REFERRING THE ABOVE DECISIONS THE LD. SENIOR COUNSEL HAS SUBMITTED THAT THE ORDER BASED ON MISTAKEN ASSUMPTI ON REQUIRES TO BE RECTIFIED BY INVOKING INHERENT POWERS AND CONSEQUEN TLY GRANT STAY AGAINST RECOVERY OF DEMAND. 4. ON THE OTHER HAND, THE LD. D.R HAS VEHEMENTLY OP POSED TO THE MISCELLANEOUS APPLICATION OF THE ASSESSEE AND SUBMI TTED THAT THE DEPARTMENT HAS CHALLENGED THE IMPUGNED ORDER OF THE TRIBUNAL BEFORE THE HONBLE HIGH COURT AND THE HEARING ON THE WRIT PETI TION IS GOING ON. HE HAS FURTHER SUBMITTED THAT THE WRIT PETITION FILED BY T HE DEPARTMENT IS COMING FOR HEARING ON 27.1.2014 WHEREIN THE JURISDICTION O F THE TRIBUNAL HAS BEEN CHALLENGED BY THE REVENUE FOR ISSUING DIRECTIONS FO R REFUND OF THE RECOVERY MA 436/M/2013 MAHARASHTRA HOUSING & AREA DEVELOPMENT AUTHORITY 3 OF TAX. HE HAS FURTHER SUBMITTED THAT IN THE WRIT P ETITION THE ASSESSEE HAS SOUGHT A NUMBER OF RELIEF INCLUDING THE STAY OF REC OVERY AND THEREFORE, THE MATTER IS PENDING BEFORE THE HONBLE HIGH COURT. 5. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND CARE FUL PERUSAL OF THE RELEVANT RECORD PLACED BEFORE US WE FIND THAT THERE IS NO DISPUTE THAT THE WRIT PETITION NO. 2544/2013 FILED BY THE ASSESSEE A GAINST THE RECOVERY OF DEMAND IS PENDING ADJUDICATION BEFORE THE HONBLE H IGH COURT. IN THE MISCELLANEOUS APPLICATION THE ASSESSEE SEEKS RECTIF ICATION IN THE IMPUGNED ORDER OF THE TRIBUNAL ON THE GROUND THAT T HE SAID WRIT PETITION BE TREATED AS INFRUCTUOUS AND NON-CONSEQUENTIAL AFT ER THE ORDER PASSED BY THE CIT(A). THUS, THE ASSESSEE IS SEEKING THAT FIRS T THE TRIBUNAL SHOULD HELD THAT THE WRIT PETITION HAS BECOME INFRUCTUOUS AND THEN GRANT STAY TO THE ASSESSEE. IT IS PERTINENT TO NOTE THAT THE FATE OF THE WRIT PETITION FILED BY THE ASSESSEE CAN BE DECIDED ONLY BY THE HONBLE HIGH COURT AND NOT BY ANY OTHER AUTHORITY OR FORUM. THE ASSESSEE HAS EVEN NOT TAKEN ANY STEP TO WITHDRAW OR TAKE PERMISSION TO WITHDRAW THE WRIT PETITION PENDING BEFORE THE HONBLE HIGH COURT. IT IS CLEAR FROM THE CONDUCT OF THE ASSESSEE THAT THE ASSESSEE WANTS TO KEEP THE PARALLEL PROCEE DINGS ON THE SAME SUBJECT MATTER BEFORE THE HONBLE HIGH COURT AS WEL L AS BEFORE THIS TRIBUNAL WHICH IS NO PERMISSIBLE. THE TRIBUNAL AFTE R TAKING NOTE OF THE FACT THAT THE ASSESSEE HAS ALREADY FILED A WRIT PETITION IN THE HIGH COURT SEEKING STAY OF DEMAND IN QUESTION AND WHICH IS PEN DING ADJUDICATION AND THEREBY REFRAIN FROM DECIDING THE ISSUE OF STAY OF DEMAND IN PARA 9 OF THE IMPUGNED ORDER AS UNDER: MA 436/M/2013 MAHARASHTRA HOUSING & AREA DEVELOPMENT AUTHORITY 4 9. AS REGARDS THE STAY OF THE RECOVERY OF THE DEMA ND SINCE THE ASSESSEE HAS ALREADY FILED A WRIT PETITION IN THE H IGH COURT AND THE MATTER OF STAY OF DEMAND IS SUBJUDICE BEFORE TH E HONBLE HIGH COURT THEREFORE THE JUDICIAL PROPRIETY AND DIS CIPLINE DEMAND THAT THIS TRIBUNAL SHOULD NOT VENTURE INTO THE SUBJ ECT MATTER WHICH IS SUBJUDICE BEFORE THE HONBLE HIGH COURT. W E ARE CONSCIOUS ABOUT THE VARIOUS DECISIONS OF THIS TRIBU NAL WHEREBY THE RECOVERY OF DEMAND HAS BEEN STAYED AFTER GIVING THE DIRECTIONS OF REFUND OF THE DEMAND ILLEGALLY RECOVE RED BUT IN THOSE CASES NO STAY PROCEEDINGS WERE PENDING BEFORE THE HONBLE HIGH COURT. THE APPEAL OF THE ASSESSEE IS D IRECTED TO THE LISTED FOR OUT OF TURN HEARING ON 4.2.2014. THE DAT E OF HEARING OF THE APPEAL IS PRONOUNCED IN THE OPEN COURT AND IN T HE PRESENCE OF BOTH THE PARTIES THEREFORE NO SEPARATE NOTICE OF HEARING WILL BE ISSUED. 6. WHEN THERE IS NO MISTAKE IN TAKING INTO CONSIDER ATION THE FACT THAT THE WRIT PETITION FILED BY THE ASSESSEE IS PENDING BEFORE THE HONBLE HIGH COURT AND WHETHER THE SAID WRIT PETITION HAS BECOME INFRUCTUOUS CAN BE DECIDED BY THE HONBLE HIGH COURT THEN THERE IS NO APPARENT MISTAKE IN THE IMPUGNED ORDER BASED ON CORRECT FACTS. THUS, IT IS CLEAR THAT THE ASSESSEE HAS FILED THIS FRIVOLOUS MISCELLANEOUS APP LICATION U/S 254(2) OF THE INCOME TAX ACT WHICH IS OTHERWISE NOT MAINTAINA BLE BECAUSE THE IMPUGNED ORDER HAS NOT BEEN PASSED U/S 254(1) OF IN COME TAX ACT. SECTION 254(2) CAN BE INVOKED ONLY IN RESPECT OF SO ME APPARENT MISTAKE ON THE FACE OF THE ORDER PASSED U/S 254(1). THEREFO RE, THE MISCELLANEOUS APPLICATION IS DEVOID OF MERIT AND A CLEAR GROSS MI SUSE AND ABUSE OF PROCESS OF LAW. HENCE, THE MISCELLANEOUS APPLICATIO N OF THE ASSESSEE IS DISMISSED WITH COST OF ` 10,000/- TO BE DEPOSITED T O THE PRIME MINISTER PRIME MINISTER PRIME MINISTER PRIME MINISTER RELIEF FUND. RELIEF FUND. RELIEF FUND. RELIEF FUND. THE REGISTRY IS DIRECTED TO PLACE A CO PY OF THIS ORDER IN THE APPEAL FOLDER IN ITA NO. 6678/2013 FOR COMPLIANCE O F DEPOSIT OF COST FAILING WHICH THE APPEAL OF THE ASSESSEE BE TAKEN OUT FROM THE CATEGORY OF OUT OF TURN HEARING. MA 436/M/2013 MAHARASHTRA HOUSING & AREA DEVELOPMENT AUTHORITY 5 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS DISMISSED WITH COST. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22 ND DAY OF JANUARY 2014 SD/- SD/- (N. K. BILLAIYA) ACCOUNTANT MEMBER (VIJAY PAL RAO) JUDICIAL MEMBER PLACE: MUMBAI: DATED: 22 ND JANUARY 2014 SUBODH. COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI