M BMallikarjuna, Shimoga V. Assistant Commissioner of Income tax, Shimoga

MA 81/BANG/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3161 (ITAT-BANGALORE)
• Duration Of Justice: 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-07-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 20-07-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Application of stay; Extension of stay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI VIJAY PAL RAO , JUDICIAL MEMBER ND SHRI JASON P BOAZ , ACCOUNTANT MEMBER MISC.PETN.NO.81/BANG/2015 (IN SP NOS.198 TO 202/ BANG/20 14) (IN ITA NOS.1847 TO 185 1 /BANG/2014) (ASSESSME NT YEAR S : 2004 - 05 TO 2008 - 09 ) SHRI M.B.MALLIKARJUNA, SRI GAJANANA TRADERS, APMC YARD, SAGAR ROAD, SHIMOGA. PAN : AFSPM3143B VS. PETITIONER DEPUTY COMMISSIONER OF INCOME - TAX, CIRCLE 1, SHIMOGA. RESPONDENT PETITIONER B Y: SHRI S.VENKATESAN, CA RESPONDENT BY: SHRI ANURAJ SAHAH, CIT(DR) DATE OF HEARING : 31/07/2015 DATE OF PRONOUNCEMENT: / 07 /2015. O R D E R PER VIJAY PAL RAO , JM : BY THIS MISC.PETITION, THE ASSESSEE IS SEEKING RECALL/RECTIFICATION OF TH E MISTAKE IN THE ORDER DATED 13/4/2015 PASSED BY THIS TRIBUNAL WHEREBY THE STAY PETITIONS OF THE ASSESSEE NOS.198 TO 202/BANG/2014 WERE DISMISSED . MP NO . 81 /BANG/201 5 SHRI M.B.MALLIKARJUNA PAGE 2 OF 4 2. WE HAVE HEARD THE A R AS WELL AS THE D R AND CONSIDERED THE MATERIAL ON RECORD. THE AR HAS SUBMITT ED THAT THE TRIBUNAL HAS DISMISSED THE STAY PETITIONS OF THE ASSESSEE BY STATING THE REASON THAT THE ORIGINAL STAY WAS GRANTED VIDE ORDER DATED 21/ 2 /2014 FOR A PERIOD OF SIX MONTHS WHICH WAS EXTENDED FOR A FURTHER PERIOD OF 6 MONTHS VIDE ORDER DATED 22/5/2 014. THE AR SUBMITTED THAT THERE WAS NO EXTENSION OF STAY GRANTED BY THE TRIBUNAL ON 21/2/2014 AND THE ORDER DATED 22/5/2014 PASSED BY THIS TRIBUNAL WAS ONLY A CLARIFICATORY ORDER ON THE APPLICATION FILED BY THE REVENUE. THUS, THE AR HAS SUBMITTED THAT THERE IS A MISTAKE APPARENT IN THE IMPUGNED ORDER BECAUSE THE TRIBUNAL HAS ASSUMED INCORRECT FACTS BY CONSIDERING THE ORDER DATED 22/5/2014 AS EXTENSION OF STAY. HE HAS FURTHER SUBMITTED THAT WHEN THERE WAS ONLY ONE STAY GRANTED BY THE TRIBUNAL FOR A PERI OD OF SIX MONTHS, THEN THE ASSESSEE IS ENTITLED FOR EXTENSION OF THE FURTHER STAY OF ANOTHER SIX MONTHS. THUS, THE AR HAS PLEADED THAT TRIBUNAL MAY RECALL THE IMPUGNED ORDER AND GRANT STAY AGAINST THE RECOVERY TILL THE DISPOSAL OF THE APPEALS OF THE ASS ESSEE WHICH IS FIXED FOR PART HEARD ON 14/8/2015 . ON THE OTHER HAND, DR HAS SUBMITTED THAT THE MISC.PETN. IS NOT MAINTAINABLE AGAINST THE ORDER PASSED BY THE TRIBUNAL IN THE STAY PETITION. MORE OVER, MORE THAN ONE YEAR HAS ALREADY EXPIRED SINCE THE ORIGINA L ORDER PASSED BY THE TRIBUNAL GRANTING STAY TO THE ASSESSEE ON 2 2/2 /2014. THEREFORE, THERE CANNOT BE AN MP NO . 81 /BANG/201 5 SHRI M.B.MALLIKARJUNA PAGE 3 OF 4 EXTENSION OF STAY BEYOND ONE YEAR AS PER THE PROVISIONS OF SEC.254. 3. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON R ECORD, WE NOTE THAT THE TRIBUNAL HAS GRANTED THE STAY AGAINST THE DEMAND INVOLVED IN THE ASSESSEE S APPEAL VIDE ORDER DATED 21/2/2014 FOR A PERIOD OF SIX MONTHS. THOUGH THERE WAS NO FURTHER EXTENSION OF THE SAID STAY GRANTED BY THE TRIBUNAL AND THE SUBSEQ UENT ORDER DATED 22/5/2014 WAS ONLY A CLARIFICATORY ORDER ON THE MISC.PETN. OF THE REVENUE AND TO THE EXTENT OF THIS FACT, THERE IS A MISTAKE IN THE IMPUGNED ORDER OF THE TRIBUNAL IN PARA.3 WHEREBY IT WAS WRONGLY ASSUMED AS EXTENSION OF THE INITIAL STAY, HOWEVER, THE PERIOD OF MORE THAN ONE YEAR HAD ALREADY EXPIRED ON 13/4/2015 WHEN THE STAY PETITION WAS DISMISSED VIDE IMPUGNED ORDER. THERE IS NO DISPUTE ON THE FACT THAT THE INITIAL ORDER GRANT STAY WAS PASSED BY THE TRIBUNAL ON 21/2/2014 AND AS PER THE P ROVISIONS OF SEC.254(2A) AND SPECIFICALLY THE PROVISO NO.1, 2 AND 3 TO THE SAID SECTION, THE TRIBUNAL CANNOT EXTEND OR GRANT STAY FOR MORE THAN AN AGGREGATE PERIOD OF 365 DAYS. IN THE CASE IN HAND, ORIGINALLY STAY WAS GRANTED BY THE TRIBUNAL ON 21/2/2014 AND THE PERIOD OF ONE YEAR/365 DAYS EXPIRED ON 21/2/2015. THEREFORE, AFTER 21/2/2015, THE STAY GRANTED BY THE TRIBUNAL VIDE ORDER DATED 21/2/2014 CANNOT BE EXTENDED OR A STAY CANNOT BE GRANTED ON THE SAME C AUSE OF ACTION. THEREFORE, EVEN OTHERWISE, THE S TAY PETITION OF THE ASSESSEE SEEKING STAY AGAINST RECOVERY OF DEMAND MP NO . 81 /BANG/201 5 SHRI M.B.MALLIKARJUNA PAGE 4 OF 4 BEYOND THE PERIOD OF 365 DAYS FROM THE ORIGINAL DATE OF GRANT OF STAY IS NOT MAINTAINABLE, PARTICULARLY IN THE FACTS OF THE PRESENT CASE WHE RE AFTER THE INITIAL PERIOD OF 180 DAYS OF STAY THERE IS A GAP OF MORE THAN 6 MONTHS WHEN THE STAY PETITION OF THE ASSESSEE WAS FINALLY DISPOSED OF BY THE TRIBUNAL VIDE ORDER DATED 13/4/2015. WE MAKE IT CLEAR THAT AS PER THE PROVISIONS OF LAW, THERE IS NO BAR FOR FILING A FRESH STAY APPLICATION SUBJEC T TO THE LIMITATIONS OF TOTAL PERIOD OF STAY BEING 365 DAYS, IF THERE IS A CHANGE IN THE FACTS AND CIRCUMSTANCES GIVING RISE TO FRESH CAUSE OF ACTION . ACCORDINGLY, IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE DO NOT FIND ANY SUBSTANCE IN THE MP FILED BY THE ASSESSEE, THE SAME IS DISMISSED. PRON OUNCED IN THE OPEN COURT ON 31 ST JU LY , 201 5 . S D/ - S D/ - (JASAN P BOAZ ) ( VIJAY PAL RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER EKSRINIVASULU COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE TRIBUNAL BANGALORE