ACIT RG 7(3)(2), MUMBAI V. PIRAMAL ENTERPRISE LTD, MUMBAI

MA 483/MUM/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7900 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-01-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: 2011-2012
• Appeal Filed On: 26-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVANEESH TIWARI
• Keywords: Extension of stay
• Section: 80IC; 254(2); 80IC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J MUMBAI BEFORE SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) M.A. NO. 483/MUM/2019 (SA NO. 263/MUM/2019) ASSESSMENT YEAR: 2011 - 12 ACIT RG 7(3)(2), ROOM NO. 128A, 1 ST F LOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020. VS. PIRAMAL ENTERPRISES LTD. AGASTYA CORPORATE PARK, KAMANI JUNCTION, L.B.S. MARG, KURLA, MUMBAI - 400070. PAN NO. AAACN4538P APPELLANT RESPONDENT REVENUE BY : MR. AVANEESH TIWARI , SR. DR ASSESSEE BY : MR. RONAK DOSHI, AR DATE OF HEARING : 08/11/2019 DATE OF PRONOUNCEMENT : 22/01/2020 ORDER PER N.K. PRADHAN, A.M. BY MEANS OF THIS MISCELLANEOUS APPLICATION (MA), THE APPLICANT SUBMITS THAT THE STAY ON RECOVERY OF DEMAND GRANTED BY THE ITAT J BENCH, MUMBAI VIDE DATED 14.06.2019 IN SA NO. 263/MUM /2019 (IN ITA NO. 850/MUM/2016) FOR AY 2011 - 12 BE VACATED AND THE DEPART MENT BE PERMITTED TO PROCEED WITH THE RECOVERY ACTION FOR THE OUTSTANDING DEMAND. 2. BEFORE US, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) SUBMITS THAT THE FIRST STAY HAS BEEN GRANTED BY THE ITAT ON 18.03.2016 ; THEREAFTER, THE STAY WAS EXTENDED BY THE TRIBUNAL BEYOND TWO AND HALF YEARS VIDE ORDER DATED PIRAMAL ENTERPRISES LTD. MA NO. 483/MUM/2019 2 04.12.2018 ON THE GROUND THAT THE ADDITION U/S 80IC EMANATED FROM AY 2008 - 09, WHEREIN THE ISSUE WAS DECIDED BY T HE TRIBUNAL IN FAVOUR OF THE ASSESSEE BASED ON A TECHNICALITY AND THE DECISION ON MERITS IS PENDING BEFORE THE TRIBUNAL FROM AY 2009 - 10 TO AY 2011 - 12. THUS IT IS SUBMITTED BY HIM AS PER THE PROVISIONS OF THE THIRD PROVISO TO SECTION 254(2A) OF THE ACT, THE STAY BEYOND 365 DAYS WILL STAND VACATED AFTER EXPIRY OF THE SAID PERIOD AND THE DEPARTMENT MAY BE PERMITTED TO PROCEED WITH THE RECOVERY ACTION FOR OUTSTANDING DEMAND OF THE E XCHEQUER. 3. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE RELIES ON THE DECISION IN PEPSI FOODS (P.) LTD . (2015) 376 ITR 87 (DEL) AND CIT V. TELESERVICES (MAHARASHTRA) LTD . (2016) 386 CTR 336 (BOM). 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. WE MAY REFER HERE TO PARA 24 OF THE ORDER IN THE CASE OF PEPSI FOODS (P.) LTD. (SUPRA), WHEREIN THE HONBLE DELHI HIGH COURT REFERRING TO THE DECISION OF THE BOMBAY HIGH COUR T IN NARANG OVERSEAS (P) LTD. V. ITAT (2007) 295 ITR 22 (BOM) HAS HELD : 24. FURTHERMORE, THE PETITIONERS ARE CORRECT IN THEIR SUBMISSION THAT UNEQUALS HAVE BEEN TREATED EQUALLY. ASSESSEES WHO, AFTER HAVING OBTAINED STAY ORDERS AND BY THEIR CONDUCT DELA Y THE APPEAL PROCEEDINGS, HAVE BEEN TREATED IN THE SAME MANNER IN WHICH ASSESSEES, WHO HAVE NOT, IN ANY WAY, DELAYED THE PROCEEDINGS IN THE APPEAL. THE TWO CLASSES OF ASSESSEES ARE DISTINCT AND CANNOT BE CLUBBED TOGETHER. THIS CLUBBING TOGETHER HAS LED TO HOSTILE DISCRIMINATION AGAINST THE ASSESSEES TO WHOM THE DELAY IS NOT ATTRIBUTABLE. IT IS FOR THIS REASON THAT WE FIND THAT THE INSERTION OF THE EXPRESSION - 'EVEN IF THE DELAY IN DISPOSING OF THE APPEAL IS NOT ATTRIBUTABLE TO THE ASSESSEE' - BY VIRTUE OF T HE FINANCE ACT, 2008, VIOLATES THE NON - DISCRIMINATION CLAUSE OF ARTICLE 14 OF THE CONSTITUTION OF INDIA. THE OBJECT THAT APPEALS SHOULD BE HEARD PIRAMAL ENTERPRISES LTD. MA NO. 483/MUM/2019 3 EXPEDITIOUSLY AND THAT ASSESSES SHOULD NOT MISUSE THE STAY ORDERS GRANTED IN THEIR FAVOUR BY ADOPTING DELAYING TACTICS IS NOT AT ALL ACHIEVED BY THE PROVISION AS IT STANDS. ON THE CONTRARY, THE CLUBBING TOGETHER OF 'WELL BEHAVED' ASSESSES AND THOSE WHO CAUSE DELAY IN THE APPEAL PROCEEDINGS IS ITSELF VIOLATIVE OF ARTICLE 14 OF THE CONSTITUTION AND HAS NO NEXUS OR C ONNECTION WITH THE OBJECT SOUGHT TO BE ACHIEVED. THE SAID EXPRESSION INTRODUCED BY THE FINANCE ACT, 2008 IS, THEREFORE, STRUCK DOWN AS BEING VIOLATIVE OF ARTICLE 14 OF THE CONSTITUTION OF INDIA. THIS WOULD REVERT US TO THE POSITION OF LAW AS INTERPRETED BY THE BOMBAY HIGH COURT IN NARANG OVERSEAS (SUPRA), WITH WHICH WE ARE IN FULL AGREEMENT. CONSEQUENTLY, WE HOLD THAT, WHERE THE DELAY IN DISPOSING OF THE APPEAL IS NOT ATTRIBUTABLE TO THE ASSESSEE, THE TRIBUNAL HAS THE POWER TO GRANT EXTENSION OF STAY BEYOND 365 DAYS IN DESERVING CASES. THE WRIT PETITIONS ARE ALLOWED AS ABOVE. 4.1 THUS WHERE THE DELAY IN DISPOSING OF THE APPEAL IS NOT ATTRIBUTABLE TO THE ASSESSEE, THE TRIBUNAL HAS THE POWER TO GRANT EXTENSION OF STAY BEYOND 365 DAYS IN DESERVING CASES. IN THE INSTANT CASE, THE ASSESSEE HAS PAID RS.13 CRORES IN COMPLIANCE TO THE ORDER OF THE TRIBUNAL DATED 18.03.2016 AND THEREBY COMPLIED WITH THE CONDITIONS STIPULATED THEREIN. WE HAVE MENTIONED SPECIFICALLY IN THE IMPUGNED ORDER THAT THE TERMS OF STAY ORIGIN ALLY GRANTED HAVE BEEN DULY COMPLIED WITH AND THE APPEAL COULD NOT BE HEARD FOR ONE REASON OR THE OTHER, BUT, FOR NO FAULT OF THE ASSESSEE. CONSIDERING THE ENTIRETY OF FACTS AND CIRCUMSTANCES OF THE CASE, WE GRANTED EXTENSION OF STAY FOR A FURTHER PERIOD O F 6 MONTHS FROM 14.06.2019 OR TILL THE DISPOSAL OF APPEAL, WHICHEVER IS EARLIER. IN FACT, NOT A SINGLE ERROR IN THE IMPUGNED ORDER HAS BEEN POINTED OUT BY THE APPLICANT. WHAT THE APPLICANT WANTS IS A REVIEW OF THE ORDER PASSED BY THE TRIBUNAL. THE TRIBUNAL IS A CREATURE OF THE STATUTE. THE TRIBUNAL CANNOT REVIEW PIRAMAL ENTERPRISES LTD. MA NO. 483/MUM/2019 4 ITS OWN DECISION UNLESS IT IS PERMITTED TO DO SO BY THE STATUTE. THE HONBLE SUPREME COURT HAS HELD IN PATEL NARSHI THAKERSHI V. PRADYUMANSINGHJI ARJUNSINGHJI [AIR 1970 SC 1273] THAT THE POWER TO REVIEW IS NOT AN INHERENT POWER. IT MUST BE CONFERRED BY LAW EITHER SPECIFICALLY OR BY NECESSARY IMPLICATION. IT IS A SETTLED LAW THAT THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER IN THE GARB OF SECTION 254(2) OF THE ACT . 5. IN THE RESULT, THE MA BEING DEVOID OF MERIT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22/01/2020. S D/ - SD/ - ( MAHAVIR SINGH ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 22/01/2020 RAHUL SHARMA, SR. P.S. 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// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI