Appeal details
Counselvise Citation
[2013] 124 COUNSELVISE.COM (IT) 0234 (ITAT-HYDERABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
27 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
22-05-2013
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
A
Assessment Year
misc
Appeal Filed On
25-04-2013
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SRI SAKTIJIT DEY, JUDICIAL MEMBER M.A. NO. 98/HYD/2013 (IN SA NO.23/HYD/13) : ASST . YEAR: 2008-09 (IN ITA NO.1814/HYD/2012) M/S. IJM (INDIA) INFRASTRUCTURES LTD., HYDERABAD. (PAN AAACI7067D) V/S- DCIT, CIR - 2(1), HYDERABAD. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI. I RAMA RAO RESPONDENT BY : SRI YVST SAI DATE OF HEARING: 10-5-2013. DATE OF PRONOUNCEMENT 2 2 -5-2013 O R D E R PERSAKTIJIT DEY, JUDICIAL MEMBER: BY THIS MISC. APPLICATION, THE ASSESSEE IS SEEKIN G THE TRIBUNAL TO GIVE DIRECTION TO THE ASSESSING OFFICER TO LIFT THE ATTACHMENT OF BANK ACCOUNT AS AN AMOUNT OF RS.21,05,33,093/- HAS BEEN RECOVERED F ROM THE ASSESSEE TOWARDS ADJUSTMENT OF TAX FOR THE IMPUGNED ASSESSME NT YEAR WHICH SHOULD BE TREATED AS THE AMOUNT PAID IN COMPLIANCE TO THE ORD ER OF THE TRIBUNAL. WHILE DISPOSING OF THE STAY APPLICATION FILED BY THE ASSE SSEE IN SA NO.23/HYD/13 THE TRIBUNAL VIDE ITS ORDER DATED 23-11-2013 HAS ORDER ED IN THE FOLLOWING MANNER:- 5. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNED AR OF THE ASSESSEE IN THE LIGHT OF THE DECISIONS RELIED UPON BY HIM. WE HAVE ALSO PERUSED THE MATERIALS ON RECORD. THOUGH IN STAY A PPLICATION THE ASSESSEE HAS STATED THAT THE DEMAND RAISED IS OF RS .52,46,62,481 BUT AS PER THE DEMAND NOTICE, THE TOTAL DEMAND RAISED IS RS.62,14,56,281/-. IT WAS FURTHER CONTENDED BY THE LEARNED AR BEFORE US THAT THE ASSESSEE IS TO GET A REFUND OF RS.30 CR ORES FROM THE DEPARTMENT. HOWEVER, IN ABSENCE OF ANY MATERIAL PL ACED BEFORE US IN M.A.NO.98 OF 2013 M/S IJM (INDIA) INFRASTRUCTURES LTD., HYD. ======================= 2 THIS REGARD, WE CANNOT TAKE NOTE OF SUCH CONTENTION BY THE LEARNED AR. WHILE CONSIDERING THE MATTER OF STAY, WE ARE NOT RE QUIRED TO GO INTO THE MERITS OF THE CASE. AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF ASST. COLLECTOR OF CENTRAL EXCISE (154 ITR 172), WH ILE CONSIDERING GRANT OF STAY, THREE CONDITIONS HAVE TO BE SATISFIED. TH ERE MUST BE PRIME FACIE CASE, BALANCE OF CONVENIENCE OF THE PARTIES, IRREPARABLE INJURY AND THE PUBLIC INTEREST. THE HONBLE SUPREME COURT FUR THER HELD THAT EVEN ASSUMING THAT ASSESSEE HAD ESTABLISHED A PRIME FAC IE CASE WOULD ITSELF NOT BE SUFFICIENT TO GRANT STAY OF RECOVERY OF DE MAND. THE BALANCE OF CONVENIENCE MUST CLEARLY BE IN FAVOUR OF MAKING INT ERIM ORDER AND THERE SHOULD NOT BE SLIGHTEST INDICATION OF LIKELI HOOD OF PREJUDICE TO THE PUBLIC INTEREST. CONSIDERING TOTALITY OF FACTS AND CIRCUMSTANCES AND KEEPING IN VIEW THE PRINCIPLES LAID DOWN BY THE HON BLE SUPREME COURT IN THE CASE OF ASST. COLLECTOR OF CENTRAL EXCISE ( SUPRA), WE ARE NOT INCLINED TO GRANT ABSOLUTE STAY OF DEMAND RAISED. HOWEVER, WE GRANT CONDITIONAL STAY SUBJECT TO PAYMENT OF AN AMOUNT O F RS.3 CRORES EVERY MONTH COMMENCING FROM MARCH, 2013 I.E., ON OR BEFOR E 31-3-2013 FOR SIX MONTHS FROM THE DATE OF THIS ORDER ON PAYMENT O F THE AFORESAID AMOUNT, RECOVERY OF BALANCE OUTSTANDING DEMAND SH ALL REMAIN STAYED FOR A PERIOD OF SIX MONTHS FROM THE DATE OF THIS OR DER OR DISPOSAL OF THE APPEAL WHICHEVER IS EARLIER. ON PAYMENT OF THE FIR ST INSTALMENT OF RS. 3 CRORES BY 31-3-2013, THE ATTACHMENT ORDER ISSUED U/ S 226(3) SHALL BE VACATED. IT IS SEEN FROM RECORD THAT THE APPEAL IS POSTED FOR HEARING ON 3-4-2013. HENCE, THIS ORDER OF THE TRIBUNAL MAY BE TREATED AS NOTICE OF HEARING AND NO SEPARATE NOTICES WILL BE SENT TO THE PARTIES CONCERNED. WE DIRECT THE ASSESSEE NOT TO TAKE ANY UNNECESSARY ADJOURNMENT ON THE DATE OF HEARING FIXED. WE ALSO DIRECT THE PARTI ES TO FILE PAPER BOOKS, IF ANY, ON OR BEFORE 28-3-2013. 2. THE LEARNED AR CONTENDED BEFORE US THAT AFTER TH E STAY ORDER WAS PASSED BY THE TRIBUNAL THE ASSESSEE APPROACHED THE A SSESSING OFFICER BY SUBMITTING A LETTER IN WRITING ON 28-3-201 3 TO ADJUST THE REFUND DUE FOR THE ASSESSMENT YEARS 2009-10 TO 2012-13 T OWARDS THE M.A.NO.98 OF 2013 M/S IJM (INDIA) INFRASTRUCTURES LTD., HYD. ======================= 3 AMOUNT DIRECTED TO BE PAID BY THE TRIBUNAL IN THE ST AY ORDER. HE FURTHER SUBMITTED THAT THE ASSESSEE WAS ONLY INFORMED ABOUT THE ADJUSTMENT OF REFUND OF AN AMOUNT OF RS.17,99,83,630/- AND RECOVERY FROM THE BANK ACCOUNT OF AN AMOUNT OF RS.3,05,59,403/- TOTAL AMOUNTI NG TO RS.21,05,49,033/-WHEN THE LETTER DATED 16-4-2013 COM MUNICATED TO THE CIT-DR WAS SERVED ON THE ASSESSEE. THE LEARNED AR SUB MITTED THAT THE ASSESSEE WAS COMPLETELY KEPT IN DARK WITH REGARD TO ADJUSTMENT OF REFUND WHICH IS IN VIOLATION OF THE PROVISIONS CONTAINED U/S 245 OF THE ACT. THE LEARNED AR SUBMITTED THAT THE TRIBUNAL HAD DIRECTED THE ASSESSEE TO PAY MONTHLY INSTALLMENTS OF RS.3 CRORE EACH FOR SIX MONTHS TOTALING TO RS.18 CRORES, WHEREAS THE DEPARTMENT HAS R ECOVERED AN AMOUNT OF RS.21,05,33,093/- TOWARDS THE OUTSTANDING DE MAND OF THE IMPUGNED YEAR. HE THEREFORE SUBMITTED THAT THE AMOUNT RECOVERED BY THE DEPARTMENT MAY BE TREATED AS SUFFICIENT COMPLIANCE O F THE ORDER OF THE TRIBUNAL. 3. THE PRELIMINARY OBJECTION OF THE LEARNED DEPARTMENTAL R EPRESENTATIVE IS THAT THE APPLICATION FILED BY THE ASSESSEE AGAIN ST STAY ORDER UNDER THE PROVISO TO SECTION 254(2A) OF THE ACT GRANTING A STAY WAS N OT MAINTAINABLE SINCE UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT, AN APP LICATION FOR RECTIFICATION CAN BE FILED ONLY AGAINST THE ORDER PASSED UNDER SUB-SE CTION (1) OF SECTION 254 AND THEREFORE THE PRESENT APPLICATION IS NOT MAINTAINAB LE. THE LEARNED DR ON CONCLUSION OF HEARING ON 3-5-2013, HAS ALSO FILED WRITTE N SUBMISSION SUBMITTING THEREIN THAT THE ASSESSING OFFICER PROPOSED TO ADJUST REFUND OF RS.12,11,20,530/- PERTAINING TO THE ASSESSMENT YEAR 2009-10 AND THE REFUND OF RS.5,88,53,100/- PERTAINING TO THE ASSESSM ENT YEAR 2011- 12 AGAINST THE OUTSTANDING DEMAND AND ACCORDINGLY DUE INTIMATIONS U/S 245 OF THE IT ACT WAS ISSUED TO THE ASSESSEE COMPANY FOR AD JUSTING THE M.A.NO.98 OF 2013 M/S IJM (INDIA) INFRASTRUCTURES LTD., HYD. ======================= 4 REFUND AND THE SAME WAS SERVED ON 16-1-2013 ON THE ASSE SSEE. IN SUPPORT OF SUCH SUBMISSIONS, THE LEARNED DR HAS ALSO SUBMITT ED A COPY OF ACKNOWLEDGMENT. HE FURTHER SUBMITTED THAT ON 18-2- 2013, THE ASSESSEE HAD FILED A PETITION WITHOUT ACKNOWLEDGING THE RECEIPT OF THE SAID INTIMATION AND REQUESTED FOR ADJUSTMENT OF REFUND FOR 2009-10 TO 2013-14. THE LD DR EXPLAINING ABOUT THE AMOUNT OF R S.62,14,56,281/- BEING MENTIONED IN THE GARNISHEE ORDERS SUBMITTED TH AT PRIOR TO THE PETITION LETTER DATED 18-2-2013 FILED BY THE ASSESSEE B EFORE THE REFUNDS WERE ACTUALLY ADJUSTED, THE ASSESSING OFFICER HAD ISSUED A TTACHMENT NOTICES TO THE BANKS ON 14-2-2013 INTIMATING THE DEMAN D OF RS.62,14,56,281/- FOR THE ASSESSMENT YEAR 2008-09 BECAUSE THE DEMAND WAS PENDING ON THAT DAY AS MENTIONED IN THE AT TACHMENT NOTICES. THE REFUND FOR THE ASSESSMENT YEAR 2009-10 WAS A DJUSTED ON 20-2-2013 AND REFUND FOR THE ASSESSMENT YEAR 2001-12 W AS ADJUSTED ON 26-2-2013. HE FURTHER SUBMITTED THAT THE CONTENTI ON OF THE ASSESSEE THAT STAY PETITION FILED BEFORE THE ASSESSING OFFI CER WAS PENDING AND DUE OPPORTUNITY WAS NOT GIVEN , IS ALSO N OT CORRECT, THE ASSESSEE FILED STAY APPLICATION BEFORE THE ADDL. CIT ON 18-2-2013. ON ASSESSEES REQUEST, URGENT AND PERSONAL HEARING WAS GRANT ED AND THE ASSESSEE WAS INFORMED THAT NEITHER THE ASSESSING OFFICER NOR THE ADDL. CIT ARE COMPETENT TO GRANT STAY WHEN THE APPEAL WAS P ENDING BEFORE THE ITAT. HOWEVER, CONSIDERING THE DIFFICULTIES OF THE ASSESSEE, THE ADDL. CIT HAD GIVEN DIRECTIONS TO THE ASSESSING OFFICER TO LIFT ATTACHMENTS ON CERTAIN BANK ACCOUNTS TO FACILITATE THE OP ERATIONS AND ACCORDINGLY THE ASSESSING OFFICER HAD LIFTED THE ATTACHMEN TS ON THREE ACCOUNTS AS DESIRED BY THE ASSESSEE. THE LEARNED DR HAS FURT HER STATED THAT AS ON DATE THE OUTSTANDING DEMAND FOR THE IMPUGN ED ASSESSMENT YEAR IS RS.41,09,23,248/-. M.A.NO.98 OF 2013 M/S IJM (INDIA) INFRASTRUCTURES LTD., HYD. ======================= 5 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL ON RECORD. THIS OBJECTION OF THE LEARNED DEPARTMENTAL REPRESENTATIVE IS NOT MAINTAINABLE FOR TWO REASONS. FIRSTLY, THOUGH IT IS STYLED AS AN APPLICATION FOR RECTIFICATION WHAT HAS BEEN F ILED BY THE ASSESSEE IS IN SUBSTANCE ONLY AN APPLICATION FOR MODIFYING THE ST AY ORDER AS ALL THE MATERIAL FACTS WERE NOT BROUGHT ON RECORD BY THE PARTIES HER EIN. SUCH APPLICATION, EITHER FOR VACATING THE STAY OR MODIFYING THE TERMS THEREOF CAN ALSO BE FILED AGAINST THE ORDER OF STAY GRANTED BY THE TRIBUNAL, IF THE CIRCUMSTANCES UNDER WHICH THE STAY GRANTED HAVE UNDER GONE SOME MATERI AL CHANGES UNDER MISTAKEN VIEW OF THE MATTER OR THE CONDITION WAS IM POSED WITHOUT APPRAISING ALL THE FACTS OF THE CASE. IT MAY NOT BE REFERABLE TO ANY PARTICULAR STATUTORY PROVISION BUT IT SHOULD BE TREATED AS AN APPLICATIO N ENABLING INHERENT POWER OF THE TRIBUNAL. SECONDLY, THE POWER TO GRANT STAY I S INCIDENTAL OR ANCILLARY TO POWER TO DISPOSE OF APPEAL AND THUS REFERABLE ONLY TO SUB-SECTION (1) OF SECTION 254 OF THE ACT. THE PROVISO TO SUB-SECTION (2A) DO ES NOT CONFER ANY POWER ON THE TRIBUNAL TO GRANT STAY. SUCH POWER IS INGRAINE D IN SUB-SECTION (1) ITSELF AND THE PROVISO INSERTED BY FINANCE ACT, 2001 OR M ODIFIED BY THE FINANCE ACT, 2007 W.E.F. 1 ST JUNE, 2007 MERELY REGULATE OR RESTRICTS THE DAY O F THE PERIOD FOR WHICH THE STAY WOULD REMAIN EFFECTIVE. THE REPOSITORY OF POWER TO GRANT STAY IS NOT THE PROVISO TO SUB-SECTION 2A) OF THE SECTION 254, BUT SUB- SECTION (1) OF SECTION 254 ITSELF WHICH DEAL WITH T HE APPELLATE JURISDICTION OF THE TRIBUNAL. FOR THIS PURPOSE, WE PLACE RELIANCE ON THE JUDGMENT HONBLE SUPREME COURT IN THE CASE OF ITO V/S. MK MOHAMMED KUNHI (71 ITR 815 (SC) AND ALSO THE ORDER OF THE TRIBUNAL IN CASE OF ITO VS. VODAFONE ESSAR LIMITED (54 DTR 253) OR 44 SOT 304. M.A.NO.98 OF 2013 M/S IJM (INDIA) INFRASTRUCTURES LTD., HYD. ======================= 6 6. FURTHER, ON 23-2-2013, WHEN THE STAY ORDER WAS PA SSED BY THE ITAT, THE ITAT HAD PROCEEDED ON THE BASIS THAT THE OUT STANDING DEMAND TO BE RS.62,14,56,281/-. NO MATERIAL WAS PLACED BEFOR E THE BENCH EITHER BY THE ASSESSEE OR BY THE DEPARTMENT WITH REGAR D TO THE RECOVERY OF THE AMOUNT OF RS.21 CRORES TOWARDS THE DEMAND OF THE IMPUGNED YEAR. ONLY DURING THE HEARING OF THE PRESENT MISC. AP PLICATION, BOTH THE ASSESSEE AND THE DEPARTMENT PRODUCED BEFORE US THE LETTE R DATED 16-4- 2013 ADDRESSED TO THE CIT (DR) INDICATING RECOVERY OF C ERTAIN AMOUNTS BY ADJUSTMENT OF REFUNDS AND ATTACHING THE BANK ACCOUNTS TOWARDS THE DEMAND OF THE IMPUGNED YEAR. THE DETAILS OF RECOVERY MADE BY THE DEPARTMENT THROUGH REFUND ADJUSTMENT/RECOVERY BY ATTA CHMENT OF BANK ACCOUNT OF THE ASSESSEE ARE AS UNDER:- SL.NO. ITEM AMOUNT DATE 1. REFUND ADJ/AY 2009-10 (CIN 121120530 23-2-2013 28 DT 23-2-13. 2. REFUND ADJ/AY 2011-12 (CIN 58863100 26-2-2013 17093 DT. 26-2-2013) 3. HDFC (CIN 67 DT.11-3-13) 83246 11-3-2013 4. HDFC (CIN75 DT.11-6-13) 8447908 11-3-2013 5. HDFC (CIN76 DT.11-6-13) 18545403 11-3-2013 6. HDFC (CIN88 DT.11-6-13) 1634694 11-3-2013 7. HSBC (CIN27 DT.12-3-13) 42003 12-3-2013 8. HSBC (CIN29 DT.12-3-13) 72651 12-3-2013 9. HSBC (CIN28 DT.12-3-13) 15059 12-3-2013 10. SBI (CIN76 DT.20-3-13) 1708439 20-3-2013 EVEN IF WE ACCEPT THE CONTENTION OF THE LEARNED AR TH AT ADJUSTMENT OF REFUND WAS NOT INTIMATED TO THE ASSESSEE BUT THE RECOVER Y MADE FROM THE BANK ACCOUNTS CERTAINLY CANNOT BE SAID TO BE NOT WIT HIN THE KNOWLEDGE OF THE ASSESSEE. THESE FACTS WERE NOT PLACED BE FORE THE M.A.NO.98 OF 2013 M/S IJM (INDIA) INFRASTRUCTURES LTD., HYD. ======================= 7 TRIBUNAL. HOWEVER, AS IT APPEARS FROM THE MATERIALS ON RECORD, AN AMOUNT OF RS.21,05,33,033/- WAS RECOVERED TOWARDS DEMAN D OF THE IMPUGNED ASSESSMENT YEAR BY WAY OF ADJUSTMENT OF REFUND AND FROM ATTACHING THE BANK ACCOUNT. SINCE THESE FACTS WERE NOT BROUGHT TO THE NOTICE OF THE TRIBUNAL EARLIER, THE TRIBUNAL TAKING INTO ACCOUNT THE DEMAND OF RS.62,14,56,281/- PASSED THE ORDER DIRECTING PAYMENT OF RS.18 CRORES MONTHLY INSTALMENTS OF RS. 3 CRORES EACH. AS ALREADY AN AMOUNT OF RS. 21,05,33,093/- HAS BEEN RECOVERED TOWARD S DEMAND OF THE IMPUGNED ASSESSMENT YEAR AND AT PRESENT THE OUTSTANDI NG DEMAND IS RS.41,09,23,248/-, WE ARE OF THE VIEW THAT IT WILL BE JUST AND REASONABLE TO TREAT THE AFORESAID AMOUNT BEING RECOVE RED TO BE IN COMPLIANCE TO THE DIRECTIONS OF THE ITAT AND NO FURTHER AMOUNT NEED BE PAID BY THE ASSESSEE. ACCORDINGLY, WE GRANT STAY RECOVE RY OF THE BALANCE OUTSTANDING DEMAND OF RS.41,09,23,248/- FOR A PERIOD OF SIX MONTHS OR TILL DISPOSAL OF THE APPEAL WHICHEVER HAPPE NS EARLIER. IN AFORESAID VIEW OF THE MATTER, WE DIRECT THE ASSESSING OFF ICER TO LIFT THE ATTACHMENT ORDERS PASSED BY HIM ATTACHING BANK ACCOUNTS OF THE ASSESSEE. THE ORDER DT. 23-11-2013 PASSED BY US IN SA NO.2 3/HYD/13 STANDS MODIFIED TO THE EXTENT INDICATED ABOVE. THE AP PEAL IS ALREADY FIXED FOR HEARING ON 3-6-2013 AND THERE IS NO CHANGE IN THE DATE OF HEARING. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILE D BY THE ASSESSEE STANDS ALLOWED. ORDER WAS PRONOUNCED IN THE COURT ON 22 -05-2 013. SD/- CHANDRA POOJARI SD/ - SAKTIJIT DEY ACCOUNTANT MEMBER JUDICIAL MEMBER. DATED: 22-5-2013. M.A.NO.98 OF 2013 M/S IJM (INDIA) INFRASTRUCTURES LTD., HYD. ======================= 8 COPY FORWARDED TO: 1. M/S. IJM (INDIA) INFRASTRUCTAURE LIMITED, KAVURI H ILLS, PHASE - I,, MADHAPUR, HYDERABAD-500 081. 2. ACIT, CIR-2(1), HYDERABAD. 3. DISPUTE RESOLUTION PANEL, IT DEPARTMENT, IT TOWERS, HYDERABAD. 4. THE CIT, AP, HYDERABAD. 5. THE DR, ITAT, HYDERABAD. JMR* M.A.NO.98 OF 2013 M/S IJM (INDIA) INFRASTRUCTURES LTD., HYD. ======================= 9
