Northen coal Fields Limited, V. Assistant Commissioner of Income tax Cir. 2,

SA 1/JAB/2014

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1070 (ITAT-JABALPUR)
• Duration Of Justice: 5 year(s) 3 month(s) 30 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 29-01-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K K UPADHYAY
• Assessee Lawyers: ABHIJEET SRIVASTAV; H S SRIVASTAV
• Keywords: Application of stay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, JABALPUR BENCH, JABALPUR BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER S.A. NO.01/JAB/2014 (IN ITA NO.18/JAB/2014) ASSESSMENT YEAR: 2010-11 NORTHERN COAL FIELDS LIMITED, VS. ASSTT. COMMI SSIONER OF INCOME TAX, P.O. SINGRAULI, JABALPUR. DISTT. SINGRAULI (M.P.) (PAN AABCN 4884 H). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI H.S. SRIVASTAV, SR. ADVOCATE & SHRI ABHIJEET SRIVASTAV RESPONDENT BY : SHRI K.K. UPADHYAY, D.R. DATE OF HEARING : 24.03.2014 DATE OF PRONOUNCEMENT : 27 .03.2014 ORDER PER T.S. KAPOOR, ACCOUNTANT MEMBER: THIS IS A STAY PETITION FILED BY THE ASSESSEE AGAIN ST THE STAY OF RECOVERY OF AN AMOUNT OF RS.815.35 CRORES. 2. AT THE OUTSET, THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT THE DEPARTMENT HAD ATTACHED THE BANK ACCOUNT OF THE ASS ESSEE AND HAD ALREADY RECOVERED AN AMOUNT OF RS.1077.32 CRORES. IT WAS S UBMITTED THAT DUE TO NON- FUNCTIONING OF JABALPUR BENCH THE ASSESSEE HAD APPR OACHED THE HONBLE HIGH COURT AND THE HONBLE HIGH COURT HAS NOT CONSIDERED THIS STAY APPLICATION AND S.A. NO.01 /JAB/2014 A.Y. 2010-11 2 INSTEAD HAD DIRECTED THE TRIBUNAL TO FIX DATE OF HE ARING AND HEAR THE APPEAL AT THE EARLIEST AND HAS ALSO GIVEN LIBERTY TO ASSESSEE TO SEEK INTERIM ORDER FROM THE TRIBUNAL FOR REFUND OF AMOUNT AS ALREADY RECOVERED BY THE DEPARTMENT. THE LD. AUTHORISED REPRESENTATIVE RELIED UPON A DECISION OF MUMBAI BENCH IN THE CASE OF DIT EXEMPTION MUMBAI VS. ITAT AND FURTHER SUBMITTED THAT THE ABOVE JUDGEMENT WAS CONFIRMED BY MUMBAI HIGH COURT AND IS REPORTED AT 361 ITR 469. IT WAS FURTHER SUBMITTED THAT THE APPEALS OF THE ASSESSEE WERE DULY COVERED IN ITS FAVOUR BY THE ORDER OF TRIBUNAL IN THE CASE OF THE ASSESSE E ITSELF IN EARLIER YEAR AS WELL AS COVERED BY THE ORDERS OF NAGPUR BENCH IN THE CASE O F WESTERN COAL FIELDS LIMITED AND CUTTACK BENCH AND CHENNAI BENCH HAS ALSO TAKEN SIMILAR VIEW UNDER SIMILAR CIRCUMSTANCES. THEREFORE, IT WAS PRAYED THAT THE A PPEALS OF THE ASSESSEE BE HEARD AT THE EARLIEST AS SIGNIFICANT AMOUNT IS INVOLVED A ND THE ASSESSEE IS UNDER FINANCIAL CRUNCH DUE TO DEARTH OF FUNDS. 3. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHE R HAND, SUBMITTED THAT THE STAY APPLICATION OF THE ASSESSEE HAS ALREADY BECOME INFRUCTUOUS AS THE HONBLE HIGH COURT HAS ALREADY REJECTED THE STAY AND THE AS SESSEES ARGUMENT FOR REFUND OF RECOVERY AMOUNT IS NOT TENABLE AS HONBLE HIGH COUR T HAS ALREADY CONSIDERED THE STAY APPLICATION AND HAS REJECTED THE SAME. AS RE GARDS HEARING OF THE APPEAL, THE LD. DEPARTMENTAL REPRESENTATIVE REQUESTED THAT THE APPEAL BE HEARD AFTER A PERIOD OF 15 DAYS AS DURING THIS PERIOD HE WILL BE ABLE TO GO THROUGH THE FILES AND MOREOVER ASSESSING OFFICER WAS ALSO BUSY WITH TIME BARRING C ASES. S.A. NO.01 /JAB/2014 A.Y. 2010-11 3 4. WE HAVE HEARD THE RIVAL PARTIES AND GONE THROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT THE STAY APPLICATION OF THE A SSESSEE COULD NOT BE HEARD DUE TO NON-FUNCTIONING OF JABALPUR BENCH. THEREFORE, THE ASSESSEE APPROACHED THE HONBLE HIGH COURT AND THE HONBLE HIGH COURT HAS D ECIDED THE MATTER AS UNDER :- THE CONTENTION OF THE PETITIONER IS THAT THE AFORE SAID RECOVERY HAS BEEN MADE ILLEGALLY, DURING THE PENDENCY OF THE APP EAL BEFORE THE INCOME TAX APPELLATE TRIBUNAL. THE AFORESAID AMOUN T MAY BE DIRECTED TO BE REFUNDED TO THE PETITIONER. THE AFORESAID CONTENTION OF THE PETITIONER APPEARS TO BE MISCONCEIVED. AT THIS JUNCTURE, WE CANNOT ISSUE ANY MANDATORY ORD ER BY WAY OF INTERIM RELIEF. THE ORDER PASSED BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT (A), AGAINST THE PETITIONER, A ND THE DEPARTMENT HAVE EFFECTED THE RECOVERY, WE DO NOT FIND ANY REAS ON TO INTERFERE IN THE AFORESAID ORDER AT THIS STAGE. THE PETITIONER MAY SEEK THE INTERIM ORDER FROM THE TRIBUNAL. HOWEVER, IN RESPECT OF AP PEAL PENDING BEFORE THE TRIBUNAL, WE FIND IT APPROPRIATE TO DIRE CT THE TRIBUNAL FOR EARLY DISPOSAL OF THE MATTER AS IT INVOLVES SUBSTAN TIAL AMOUNT OF TAX. 5. WE FIND THAT THE HONBLE HIGH COURT HAS ALREADY DECIDED THE ISSUE OF STAY AND HAS DIRECTED THE TRIBUNAL TO HEAR THE APPEALS A T THE EARLIEST. THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE APPE AL WAS NOT COVERED IN FAVOUR OF THE ASSESSEE AS THE ISSUE IN THIS YEAR IS DISTIN GUISHABLE FROM THE FACTS OF THE CASES RELIED UPON BY THE LD. AUTHORISED REPRESENTATIVE. AT THE BENCH ITSELF THE LD. DEPARTMENTAL REPRESENTATIVE WAS ASKED TO ARGUE THE CASE ON 27.03.2014 TO WHICH HE REPLIED IN THE NEGATIVE AND REQUESTED FOR A SHOR T PERIOD OF 15 DAYS AND ALSO REQUESTED THAT THE A.O. WAS ALSO BUSY WITH THE TIME BARRING CASES. THEREFORE, IT WAS PRAYED THAT IT WOULD BE APPROPRIATE IF THE CASE IS HEARD AFTER 15.04.2014. S.A. NO.01 /JAB/2014 A.Y. 2010-11 4 THEREFORE, IN THE INTEREST OF JUSTICE, WE DIRECT TH E REGISTRY TO FIX THE CASE FOR HEARING ON MERITS AFTER 15.04.2014 AT THE EARLIEST POSSIBLE WHENEVER BENCH STARTS FUNCTIONING. 6. AS REGARDS THE PRAYER OF THE ASSESSEE TO REFUND THE ALREADY RECOVERED AMOUNT, WE FIND THAT THE ARGUMENT IS NOT TENABLE IN VIEW OF THE FINDINGS OF THE HONBLE HIGH COURT ON THIS MATTER. HOWEVER, AFTER HEARING OF APPEAL AND DISPOSAL, THE GRIEVANCE OF THE ASSESSEE WILL AUTOMATICALLY BE ADDRESSED. THE ABOVE APPLICATION OF STAY IS DISPOSED IN THE MANNER AS ST ATED ABOVE. (ORDER PRONOUNCED IN THE OPEN COURT ON 27.03.2014) SD/- SD/- (BHAVNESH SAINI) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 27 TH MARCH, 2014 PBN/* COPY OF THE ORDER FORWARDED TO :- 1) APPELLANT 2) RESPONDENT 3) CIT (APPEALS) CONCERNED 4) CIT CONCERNED 5) D.R., ITAT, JABALPUR BENCH, JABALPUR 6) GUARD FILE. BY ORDER, SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, CAMP AT JABALPUR