DCIT (International Taxation), Circle-1(3)(1), New Delhi V. GE Nuovo Pignone SPA, Gurgaon

MA 446/DEL/2022

AI Insights

The case involves the Revenue's application for recall of an order that extended the stay on recovery of outstanding demand from GE Nuovo Pignone SPA. The Revenue argued that the Tribunal's previous order did not comply with the statutory requirement of section 254(2A) of the Income Tax Act, which mandates a stay on recovery subject to payment of 20% of the entire outstanding demand. However, the Tribunal found that the extension of stay was justified based on the circumstances of the case, including the non-attribution of delay in appeal disposal to the assessee and the unchanged facts on which the stay was granted and extended previously.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 300621 (ITAT-DELHI)
• Duration Of Justice: 1 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-01-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 19-01-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 20-12-2022
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: ‘D’ NEW DELHI BEFORE SHRI G.S. PANNU, HON’BLE PRESIDENT AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER M.A. No.446/Del/2022 [Arising out of S.A. No.265/Del/2022] Assessment Year: 2010-11 DCIT (International Taxation), Circle -1(3)(1), New Delhi Vs. GE Nuovo Pignone SPA, C/o- 6 th Floor, Building 7A, Standard Chartered Building, DLF Cyber City, Phase-III, Gurgaon PAN :AABCG3212A (Applicant) (Respondent) ORDER PER SAKTIJIT DEY, JM: Captioned application has been filed by the Revenue seeking recall of order dated 07.09.2022 passed in S.A. No.265/Del/2022 extending stay on recovery of outstanding demand. 2. We have heard Sh. Mrinal Kumar Das, learned Departmental Representative and Sh. Sachit Jolly, learned counsel appearing for the assessee. Applicant by Sh. Mrinal Kumar Das, Sr. DR Respondent by Sh. Sachit Jolly, Advocate Date of hearing 20.01.2023 Date of pronouncement 30.01.2023 M.A. No.446/Del/2022 2 | P a g e 3. Justifying the filing of the present application, learned Departmental Representative submitted, as per section 254(2A) of the Act, the Tribunal can grant stay on recovery of outstanding demand subject to payment of 20% of the entire outstanding demand. Whereas, the payment directed by the Tribunal falls short of the amount prescribed under the statutory provision. Thus, there is a mistake apparent on the fact of record. 4. Having considered rival submissions, we find that while considering the initial stay application filed by the assessee, the Tribunal, vide order dated 08.12.2017 in S.A. No. 711 & 712/Del/2017 had granted conditional stay to the assessee. Stay granted earlier was extended from time to time and last order extending stay was passed on 07.09.2022. It is further observed, though, the corresponding appeals have come up for hearing on multiple occasions, however, the Bench could not proceed with the hearing in view of a specific direction of the Hon’ble Jurisdictional High Court not to proceed with the appeals till the appeal for another assessment year pending in the Hon’ble High Court is taken up for hearing. 5. Considering the fact that the delay in disposal of the appeals is not attributable to the assessee and facts based on which stay M.A. No.446/Del/2022 3 | P a g e was earlier granted and extended from time to time have not changed, the Tribunal extended the stay. In our view, the decision taken by the Tribunal is after considering prima facie case, balance of convenience and all other relevant factors. Therefore, it cannot be said that there is a mistake in the order of the Tribunal, much less, mistake apparent on the face of record. 6. In course of hearing, learned counsel appearing for the assessee submitted that there is absolute lack of urgency by Revenue in the matter of appeal pending before the Hon’ble High court as the Revenue keeps on seeking repeated adjournments. This approach of the Revenue cannot be appreciated. On one hand, the Revenue is not serious in getting the matter heard in the Hon’ble High Court, on the other hand, Revenue is insisting upon the Tribunal to direct the assessee to pay more by filing frivolous applications, like the present one. This, in our view, is totally unacceptable. In case, the Revenue is aggrieved with the order passed by the Tribunal extending stay, it is free to take remedial measures against the order passed by the Tribunal. However, that cannot be done by taking recourse to section 254(2) of the Act, which is intended for rectifying mistake apparent on M.A. No.446/Del/2022 4 | P a g e the face of record. In view of the aforesaid, the present application filed by the Revenue, being devoid of merit, is dismissed. 7. In the result, the miscellaneous application is dismissed. Order pronounced in the open court on 30 th January, 2023 Sd/- Sd/- (G.S. PANNU) (SAKTIJIT DEY) PRESIDENT JUDICIAL MEMBER Dated: 30 th January, 2023. RK/- Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi