M/s HPCL Mittal Energy Ltd, Bathinda V. The Assistant Commissioner of Income Tax, Bathinda

SA 11/ASR/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3280 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 20-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 17-01-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 24-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHAWANI SHANKAR
• Keywords: Extension of stay; Difference of opinion
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRIT SAR (CAMP AT JALANDH AR ) BEFORE SH. A.D.JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER S.A. NOS.10 & 11(ASR)/2016 ARISING OUT OF ITA NOS.554 & 555(ASR)/2014 ASSESSMENT YEARS: 2008-09 & 2009-10 M/S . HPCL MITTAL ENERGY LTD. , VILLAGE- PHULOKHARI, THE: TALWANDI SABO, DISTT. BATHINDA (PUNJAB). PAN: AABCG-5231F VS. ASST. CIT, CIRCLE-1, BATHINDA. (APPELLANT) (RESPONDENT) APPELLANT BY: NONE RESPONDENT BY: SH. BHAWANI SHANKAR (DR.) DATE OF HEARING: 17.01. 2017 DATE OF PRONOUNCEMENT: 25.01.201 7 ORDER PER T. S. KAPOOR (AM): THIS ORDER IS BEING PASSED AS A CONSEQUENTIAL ORDER AFTER THE THIRD MEMBER ORDER DATED 04.01.2017 ON THERE BEING A DIFF ERENCE OF OPINION BETWEEN LD. MEMBERS CONSTITUTED BY THE AMRITSAR BEN CH. THE DIFFERENCE OF OPINION AROSE BETWEEN THE MEMBERS WHILE GRANTING EXTENSION OF STAY FOR THE RECOVERY OF DEMAND. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E WAS IMPOSED PENALTY U/S 271(1)(C) OF THE ACT. WHILE ADJUDICATIN G THE APPEALS RELATING TO PENALTY DIFFERENCE OF OPINION AROSE BETWEEN LD. MEMBERS CONSTITUTED BY THE AMRITSAR BENCH AND THEREFORE, THE MATTER WAS REFERRED TO THIRD S.A NOS.10 & 11(ASR)/2016 ARISING OUT OF ITA NOS.554 & 555(ASR)/2014 ASST. YEAR: 2008-2009 & 2009-10 2 MEMBER FOR HIS DECISION. HOWEVER, THE HEARING BEFOR E THIRD MEMBER COULD NOT TAKE PLACE. 3. IN THE MEAN TIME, ON AN APPLICATION FILED BY ASS ESSEE, IT WAS GRANTED STAY VIDE ORDER DATED 30.09.2014, WHICH ON ANOTHER APPLICATION WAS FURTHER EXTENDED BY ORDER DATED 29.07.2016. AGA IN ASSESSEE APPLIED FOR EXTENSION OF THE STAY ORDER AS THE CASES FIXED BEFORE THIRD MEMBER WERE NOT HEARD AND DELAY IN DISPOSAL OF APPEALS WER E NOT ATTRIBUTABLE TO THE ASSESSEE. THE ACCOUNTANT MEMBER, THEREFORE, PAS SED THE ORDER FOR EXTENSION OF STAY AND EXTENDED THE STAY FOR A FURTH ER PERIOD OF 90 DAYS OR TILL THE DISPOSAL OF THE APPEALS BY THIRD MEMBER WH ICHEVER WAS EARLIER. WHILE EXTENDING THE STAY THE ACCOUNTANT MEMBER RELI ED ON THE JUDGMENT OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE C ASE OF PR. CIT VS. M/S CARRIER AIR CONDITIONING AND REFRIGERATION LTD. , FOR THE PROPOSITION THAT WHERE THE DELAY IN DISPOSAL OF APPEALS WAS NOT ATTRIBUTABLE TO THE ASSESSEE THE TRIBUNAL WAS EMPOWERED TO EXTEND THE P ERIOD OF STAY BEYOND 365 DAYS. THE ACCOUNTANT MEMBER HAD ALSO HEL D THAT THE TERMS AND CONDITIONS OF THE ORIGINAL STAY ORDER AS WELL A S OF THE EXTENDED STAY ORDER WILL CONTINUE TO REMAIN THE SAME. HOWEVER, TH E JUDICIAL MEMBER THOUGH AGREED WITH THE EXTENSION OF STAY FOR A PERI OD OF 90 DAYS BUT HE IMPOSED THE FOLLOWING TWO CONDITIONS FOR EXTENSION OF STAY. (I) THE ASSESSEE SHALL PROVIDE BANK GUARANTEE OF N ATIONALIZED BANK TO THE TUNE OF 25% OF THE AMOUNT OF THE ORDER ON SUCH TERMS AND CO NDITIONS AS THE REVENUE DEPARTMENT DEEMS FIT WITHIN 30 DAYS FROM THE DATE O F ORDER; (II) THE ASSESSEE SHALL GIVE UNDERTAKING TO THE EFF ECT THAT THE ASSESSEE SHALL NOT TRANSFER, DISPOSE OFF, ALIENATE OR CREATE ANY KIND OF THIRD PARTY INTEREST IN THE FIXED S.A NOS.10 & 11(ASR)/2016 ARISING OUT OF ITA NOS.554 & 555(ASR)/2014 ASST. YEAR: 2008-2009 & 2009-10 3 ANY IMMOVABLE ASSETS OF THE ASSESSEE COMPANY, IN OR DER TO SECURE THE AMOUNT UNDER CONSIDERATION WITHIN 30 DAYS FROM THE DATE OF THE ORDER. CONSEQUENT UPON THE DIFFERENCE BETWEEN THE MEMBERS GRANTING THE EXTENSION OF STAY, THIRD MEMBER WAS APPOINTED WHO VIDE ORDER DATED 04.01.2017 HAS AGREED THAT THE EXTENSION BE EXTENDE D FOR A FURTHER PERIOD OF 90 DAYS OR TILL DISPOSAL OF THE APPEAL BY THE THIRD MEMBER AND WHILE HOLDING THIS VIEW HE AGREED WITH ONE OF THE C ONDITIONS OF JUDICIAL MEMBER THAT THE STAY BE EXTENDED WITH ONE CONDITION ONLY THAT ASSESSEE SHALL GIVE UNDERTAKING TO THE EFFECT THAT ASSESSE S HALL NOT TRANSFER, DISPOSE OFF, ALIENATE OR CREATE ANY KIND OF THIRD P ARTY INTEREST IN THE FIXED AND IMMOVABLE ASSETS OF THE ASSESSEE COMPANY IN ORD ER TO SECURE THE AMOUNT UNDER CONSIDERATION WITHIN 30 DAYS FROM THE DATE OF THE ORDER. 4. WE HAVE GONE THROUGH THE MATERIAL PLACED ON RECO RD AND AFTER GOING THROUGH THE RECORD, WE EXTEND THE STAY FOR A PERIOD OF 90 DAYS OR TILL THE DISPOSAL OF THE APPEAL BY THIRD MEMBER WHI CHEVER IS EARLIER WITH THE CONDITION THAT THE ASSESSEE SHALL GIVE UNDERTAK ING TO THE EFFECT THAT ASSESSEE SHALL NOT TRANSFER, DISPOSE OFF, ALIENATE OR CREATE ANY KIND OF THIRD PARTY INTEREST IN THE FIXED AND IMMOVABLE ASS ETS OF THE ASSESSEE COMPANY, IN ORDER TO SECURE THE AMOUNT WITHIN 30 DA YS FROM THE DATE OF THE ORDER. CONSEQUENTIAL ORDER PRONOUNCED IN THE OPEN COUR T ON 25.01.2017. SD/- SD/- (A.D. JAIN) (T. S . KAPOOR) JUDICIAL MEMBER A CCOUNTANT MEMBER DATED: 25.01.2017 /PK/ PS. S.A NOS.10 & 11(ASR)/2016 ARISING OUT OF ITA NOS.554 & 555(ASR)/2014 ASST. YEAR: 2008-2009 & 2009-10 4 COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER