M/s. Sinhagad Technical Education Society, Pune V. Deputy Commissioner of Income-tax, Central Circle-2(2), Pune

SA 125/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0565 (ITAT-PUNE)
• Duration Of Justice: 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 16-11-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANJEEV GHEI
• Assessee Lawyers: S N DOSHI
• Keywords: Recovery proceedings; Depreciation; Application of stay; TDS
• Section: 143(3); 153A; 234B; 12A; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM SA NO S . 1 21 TO 126 /P U N/201 8 ARISING OUT OF IT (SS) A NO S . 45 TO 50 /P U N/201 7 ASSESSMENT YEAR S : 20 09 - 10 TO 2014 - 15 SINHGAD TECHNICAL EDUCATION SOCIETY 19/15, ERANDWANE, SMT. KHILARE MARG, OFF. KARVE ROAD, PUNE 41 1004 . APP LICANT PAN: AA B TS9900Q VS. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2) , PUNE . RESPONDENT APPLICANT BY : S /S HRI S.N. DOSHI & PRATIK SANDBHOR RESPONDENT BY : SHRI SANJEEV GHEI / DATE OF HEARING : 22 . 1 1 .201 8 / DATE OF PRONOUNCEMENT: 18 . 1 2 .201 8 / ORDER PER SUSHMA CHOWLA, JM : THE CAPTIONED STAY APPLICATION S ARE MOVED BY THE APPLICANT FOR STAY OF DEMAND TOTALING 142.76 CRORES RELATI NG TO ASSESSMENT YEARS 2008 - 09 TO 2014 - 15. 2. THE APPLICANT HAD EARLIER MOVED STAY APPLICATIONS BEFORE THE TRIBUNAL AND VIDE ORDER DATED 10.11.2017, THE STAY APPLICATIONS WERE DISPOSED OF, UNDER WHICH THE ASSESSEE WAS DIRECTED TO DEPOSIT 18 CRORES IN TH REE INSTALLMENTS OF 6 CRORES EACH BY 30.11.2017, 30.12.2017 AND 15.01.2018. THE BALANCE DEMAND WAS 2 S A NO S . 1 21 TO 126 /P U N/201 8 STAYED SUBJECT TO THE FULFILLMENT OF SAID CONDITIONS AND OUT OF TURN HEARING WAS ALSO GRANTED TO THE APPLICANT ON 18.01.2018 SUBJECT AGAIN TO PAYMENT OF 18 CRORES. IT WAS ALSO MENTIONED THAT IN CASE BREACH OF ANY OF THE SAID CONDITIONS, THE STAY GRANTED WOULD AUTOMATICALLY GET VACATED AND THE MATTER WOULD BE HEARD IN ORDINARY COURSE. THE BALANCE OUTSTANDING DEMAND WAS THUS, STAYED FOR PERIOD OF 180 DAYS FROM THE DATE OF ORDER OR TILL DISPOSAL OF THE APPEALS, WHICHEVER WAS EARLIER. THE TRIBUNAL HAD ALSO DEALT WITH EACH OF THE ISSUES WHICH WERE DECIDED AGAINST THE APPLICANT AND EVEN THE ARGUMENTS OF APPLICANT IN RESPECT OF THE SAME WERE REFERRED AND EVEN THE COMMENTS MADE BY THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE WERE TAKEN INTO CONSIDERATION. THE TRIBUNAL HAD ALSO ASKED THE APPLICANT TO PROVE ITS CASE OF FINANCIAL DIFFICULTY AND TAKING INTO CONSIDERATION ALL THE ABOVE SAID ARGUMENTS AND THE EVIDENCES FILED, THE TRIBUNAL HELD AS UNDER: - 11. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. IN THE PRESENT STAY APPLICATION, ISSUE IS IN RESPECT OF DEMAND CREATED IN THE CASE OF APPLICANT WHICH IS ON ACCOUNT OF ASSESSMENTS FRAMED UN DER SECTION 153A R.W.S. 143(3) OF THE ACT FOR ASSESSMENT YEARS 2009 - 10 TO 2013 - 14. FOR ASSESSMENT YEAR 2014 - 15, THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT. THE APPLICANT TRUST WAS RUNNING VARIOUS INSTITUTIONS AND HAS BEEN GRANTED REGIST RATION UNDER SECTION 12A OF THE ACT. DURING THE COURSE OF SEARCH, INCRIMINATING EVIDENCE WAS FOUND THAT THE ASSESSEE IN VARIOUS YEARS HAS ACCEPTED CAPITATION FEES AGAINST THE ADMISSIONS GRANTED TO THE STUDENTS. VARIOUS DOCUMENTS HAVE BEEN REFERRED TO BY BOTH THE AUTHORITIES BELOW IN THIS REGARD AND THE CASE OF REVENUE IS THAT IN VIEW OF ASSESSEE ACCEPTING CAPITATION FEES AGAINST ADMISSION OF STUDENTS, THE APPLICANT IS NOT ENTITLED TO CLAIM OF EXEMPTION UNDER SECTIONS 11 AND 12 OF THE ACT. HENCE, THE SURP LUS HAS BEEN ADDED AS INCOME OF APPLICANT AND HENCE, THE DEMAND AS TABULATED IN THE PARAS HEREINABOVE. THE ISSUE WHICH HAS BEEN RAISED IN THE PRESENT STAY APPLICATION FILED BY THE APPLICANT IS THAT THERE IS NO MERIT IN WHOLESALE DENIAL OF EXEMPTION UNDER SECTIONS 11 AND 12 OF THE ACT. IT HAS BEEN PLEADED BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE APPLICANT AT STRETCH THAT EVEN IF CAPITATION FEES IS ACCEPTED BUT THE SAME IS FOR THE PURPOSE OF GIVING EDUCATION TO THE STUDENTS AND HENCE, IS PART OF AC TIVITY CARRIED ON BY THE APPLICANT TRUST AND THERE IS NO MERIT IN THE DENIAL OF EXEMPTION UNDER SECTION 11 OF THE ACT. ON THE OTHER HAND, THE CASE OF REVENUE IS THAT IN VIEW OF INCRIMINATING DOCUMENTS FOUND, THE APPLICANT TRUST IS NOT ENTITLED TO THE SAID EXEMPTION UNDER SECTION 11 OF THE ACT. THE TOTAL INCOME OTHER THAN VIOLATION UNDER SECTION 13 OF THE ACT WHICH IS ASSESSED IN THE HANDS OF APPLICANT FOR THE CAPTIONED ASSESSMENT YEARS IS RS.266.23 CRORES. FURTHER, THE INCOME ATTRACTING VIOLATION UNDER S ECTION 13 OF THE ACT FOR THE RESPECTIVE YEARS TOTALS TO RS.57.43 CRORES. THE SAME IS BASED ON THE INCRIMINATING DOCUMENTS FOUND DURING SEARCH. THE TOTAL TAX ON RS.57.43 CRORES IS RS.17.23 CRORES AND INCLUDING THE SURCHARGE AND INTEREST, THE OUTSTANDING D EMAND IS RS.24.13 CRORES. THE APPLICANT CLAIMS THE BENEFIT OF TDS OF RS.1.27 CRORES AND REGULAR PAYMENT OF 3 S A NO S . 1 21 TO 126 /P U N/201 8 RS.5.25 CRORES AGAINST THE SAME, THE REVENUE HAS WORKED OUT THE BALANCE DEMAND IN THIS REGARD TO RS.17.58 CRORES. ON THE OTHER HAND, THE TOTAL DEMA ND CREATED IN THE CASE OF APPLICANT IS RS.103.99 CRORES AND THE BALANCE DEMAND AFTER INCLUDING INTEREST UNDER SECTION 234B OF THE ACT AND AFTER ALLOWING CREDIT FOR TDS AND TAXES PAID IS RS.142.98 CRORES. IN THE FACTS OF THE CASE WHILE GRANTING STAY FOR RE COVERY OF OUTSTANDING DEMAND WHAT IS TO BE SEEN IS WHETHER THE APPLICANT HAS PRIMA FACIE CASE FOR STAY OF THE OUTSTANDING DEMAND AND THE SECOND ASPECT IS THE BALANCE OF CONVENIENCE AND THE THIRD ASPECT IS THE FINANCIAL POSITION OF APPLICANT. IN RESPECT OF FIRST ASPECT, WE FIND THAT VIS - - VIS DENIAL OF EXEMPTION UNDER SECTION 11 OF THE ACT ON REGULAR RECEIPTS, THE APPLICANT PRIMA FACIE HAS CASE IN HIS FAVOUR. HOWEVER, THE ISSUE OF CLAIM OF EXEMPTION UNDER SECTION 11 OF THE ACT ON CAPITATION FEES RECEIVED B Y THE APPLICANT IS SETTLED AGAINST THE APPLICANT BY THE DECISION OF THIS BENCH. THE THIRD ASPECT OF THE DEMAND IS THE VIOLATION UNDER SECTION 13 OF THE ACT ON ACCOUNT OF SIPHONING OF FUNDS BY MR.M.N. NAVALE TO THE EXTENT OF RS.24 CRORES. IN RESPECT OF SA ID SUM OF RS.24 CRORES, THE APPLICANT HAS POINTED OUT THAT THE ADDITION HAS BEEN MADE ON SUBSTANTIVE BASIS IN THE HANDS OF MR.M.N. NAVLE. THUS, WE FIND THAT BALANCE OF CONVENIENCE IS IN FAVOUR OF APPLICANT WHERE THE AMOUNT HAS ALREADY BEEN ADDED IN THE HA NDS OF MR. M.N. NAVLE. HOWEVER, IN RESPECT OF INCOME WHICH IS ON ACCOUNT OF CAPITATION FEES TOTALED RS.57.43 CRORES, WE FIND NO MERIT IN THE CLAIM OF APPLICANT FOR STAY OF RECOVERY OF OUTSTANDING DEMAND AGAINST THE SAME. THE BALANCE DEMAND WHICH IS RECOV ERABLE ON ACCOUNT OF SAID ADDITION WORKS OUT TO RS.17.58 CRORES AS PER WORKING GIVEN BY THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE, WHICH IS AS UNDER: - TAX ON INCOME ATTRACTING VIOLATION U/S 13(1)(C) TAX + INTEREST + SURCHARGE TDS REGULAR PAY MENT NET DEMAND 21,12,000 23,92,896 30,26,403 3,80,00,000 ( - )3,86,33,507 2,40,000 2,47,200 24,71,107 - ( - )22,23,907 71,85,000 1,07,56,752 18,06,880 - 89,49,872 1,34,04,278 1,96,25,574 16,83,138 - 1,79,42,436 8,69,51,477 12,10,43,493 21,05,930 - 11,89, 37,563 6,24,07,757 8,72,36,865 18,37,666 1,45,00,000 7,08,99,200 17,23,00,512 24,13,02,780 1,29,31,124 5,25,00,000 17,58,71,656 12. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE APPLICANT HAS NOT CONTROVERTED THE WORKING OF THE DEMAND ON INCOME ATTRACT ING THE VIOLATION UNDER SECTION 13 OF THE ACT. IT WAS THE CASE OF APPLICANT BEFORE US THAT THE SAID INCOME TOTALED RS.57.43 CRORES, WHICH IS MENTIONED IN HIS WRITTEN SUBMISSIONS ALSO. HOWEVER, AGAINST THE SAME, HE HAS TIME AND AGAIN PLEADED THAT SUM OF R S.24.10 CRORES HAS BEEN ALLEGED TO BE SIPHONED BY MR.M.N. NAVALE BY THE AUTHORITIES BELOW AND FOR THE BALANCE AMOUNT, THERE WERE NO EQUIVALENT ASSETS. HOWEVER, WE FIND NO MERIT IN THE PLEA OF LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE IN THIS REGA RD. THE ADDITION HAS BEEN MADE IN THE HANDS OF APPLICANT ON THE BASIS OF INCRIMINATING DOCUMENTS AND IN ANY CASE THE MERITS OF CASE ARE STILL OPEN FOR DISCUSSION, SINCE WE ARE ONLY DISPOSING OF STAY APPLICATION AGAINST RECOVERY OF OUTSTANDING DEMAND. IN VIEW THEREOF, WE ARE OF THE OPINION THAT THE APPLICANT HAS NOT MADE OUT ANY PRIMA FACIE CASE AGAINST THE STAY OF RECOVERY PROCEEDINGS AGAINST THE OUTSTANDING DEMAND TOTALED TO RS.17.58 CRORES. 13. BEFORE PARTING, WE WOULD LIKE TO COMMENT ON THE FINANCIAL POSITION OF APPLICANT, WHERE THE CASE OF APPLICANT WAS THAT IT HAS NO FUNDS AVAILABLE WITH IT, THE 4 S A NO S . 1 21 TO 126 /P U N/201 8 PERUSAL OF DETAILS FILED BY THE APPLICANT REFLECTS THE LIST OF ADVANCES TO THE EXTENT OF RS.263 CRORES MADE BY THE APPLICANT TO DIFFERENT TRUSTS. FURTHER, H E HAS ENLISTED LIST OF POST - DATED CHEQUES UP TO NOVEMBER, 2017, WHICH CANNOT TAKE PRECEDENT OVER THE STATUTORY OUTSTANDING DEMAND. FURTHER, THE APPLICANT CLAIMS THAT THE BANK FDRS ARE AGAINST GUARANTEES GIVEN BY THE APPLICANT TO DIFFERENT INSTITUTIONS. H OWEVER, IN THIS REGARD, THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE HAS POINTED OUT THAT OUT OF TOTAL FDRS OF RS.10.97 CRORES, THE AMOUNT UTILIZED FOR BANK GUARANTEE IS ONLY RS.5.23 CRORES AS PER DETAILS FILED BY THE APPLICANT. FURTHER, THE AV AILABLE BANK BALANCES ARE TO THE TUNE OF RS.6.60 CRORES. 14. THE NEXT ASPECT WHICH HAS TO BE SEEN IS THE LIQUID FUNDS OF RS.103 CRORES WHICH IS THE AMOUNT FROM STATE GOVERNMENT GIVEN TO THE APPLICANT, WHICH UNDOUBTEDLY GOES FOR RUNNING OF INSTITUTION BUT ALSO INCLUDE THE PAYMENT OF TAXES, IF ANY. FURTHER, THE SURPLUS BEFORE DEPRECIATION WHICH IS AVAILABLE WITH THE APPLICANT FROM YEAR TO YEAR IS ALSO AVAILABLE WITH ASSESSEE. ANOTHER ASPECT TO BE NOTED FROM THE FINANCIAL ACCOUNTS SUBMITTED BY THE APPLICANT IS THAT IT HAS GIVEN DONATION OF RS.20.02 CRORES AS REFLECTED IN SCHEDULE II OF PROFIT AND LOSS ACCOUNT ENDING 31.03.2017, PLACED AT PAGE 76 OF THE PAPER BOOK. 15. IN THE TOTALITY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE APP LICANT HAS PRIMA FACIE CASE AND BALANCE OF CONVENIENCE FOR GRANTING ONLY PARTIAL STAY OF RECOVERY OF OUTSTANDING DEMAND. WE THEREFORE, GRANT THE STAY OF OUTSTANDING TAX DEMAND SUBJECT TO THE FOLLOWING CONDITIONS: - A ) THE APPLICANT IS DIRECTED TO DEPOSIT RS. 18 CRORES IN THREE INSTALLMENTS I.E. RS.6 CRORES BY 30.11.2017; RS.6 CRORES BY 30.12.2017 AND RS.6 CRORES BY 15.01.2018. B ) THE APPLICANT SHALL FURNISH THE PROOF OF PAYMENT OF TAXES ON PAYMENT TO THE REGISTRY; C ) IN CASE HE FAILS TO DEPOSIT THE TAXES AS STATED IN (A) ABOVE, THEN THE CASE WOULD COME FOR HEARING IN NORMAL COURSE AND NOT BE CONSIDERED AS STAY GRANTED MATTER. D ) THAT OUT OF TURN HEARING IS GRANTED ON 18.01.2018 SUBJECT TO PAYMENT OF RS.18 CRORES; NO SEPARATE NOTICE OF HEARING WOULD BE ISSUED BY THE R EGISTRY; E ) THAT THE APPLICANT SHALL NOT SEEK FRIVOLOUS ADJOURNMENTS. IF PAPER BOOK IS DESIRED TO BE FILED BY THE APPLICANT, THEN THE SAME SHOULD BE SUBMITTED WELL IN ADVANCE AS PRESCRIBED IN ITAT RULES; F ) IN CASE OF BREACH OF ANY OF THE ABOVE CONDITIONS, TH E STAY GRANTED SHALL AUTOMATICALLY GET VACATED AND MATTER WOULD BE HEARD IN ORDINARY COURSE. 16. SUBJECT TO THE FULFILLMENT OF THE ABOVE CONDITIONS, THE BALANCE OUTSTANDING DEMAND IS STAYED FOR A PERIOD OF 180 DAYS FROM THE DATE OF THIS ORDER OR TILL DISP OSAL OF THE APPEAL, WHICHEVER IS EARLIER. 5 S A NO S . 1 21 TO 126 /P U N/201 8 3. THE PRESENT STAY APPLICATIONS HAVE BEEN MOVED AGAIN BY APPLICANT IN RESPECT OF OUTSTANDING DEMAND RELATING TO THE AFORESAID ISSUES ITSELF . THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE APPLICANT POINTED OUT T HAT AFTER STAY APPLICATIONS WERE DISPOSED OF BY THE TRIBUNAL, WRIT PETITION WAS FILED BEFORE THE HONBLE BOMBAY HIGH COURT AND THE SAID WRIT PETITION WAS AGAINST DIRECTIONS OF THE TRIBUNAL IN ASKING THE APPLICANT TO DEPOSIT SUM OF 18 CRORES IN THREE INST ALLMENTS. THE PLEA OF APPLICANT BEFORE THE HONBLE HIGH COURT WAS THAT THEY WERE NOT IN A POSITION TO DEPOSIT ANY AMOUNT. THE HONBLE HIGH COURT IN WRIT PETITION NO. 13099 OF 2017 VIDE ORDER DATED 28.11.2017 REFUSED TO GRANT ANY AD - INTERIM RELIEF AND THE PETITION WAS DIRECTED TO BE PLACED ON BOARD FOR ADMISSION IN ITS OWN TURN. THEREAFTER, THE PETITION WAS TAKEN UP AND THE HONBLE HIGH COURT VIDE ORDER DATED 05.01.2018 NOTED CERTAIN DEVELOPMENTS UNDER WHICH THE APPLICANT HAD MALAFIDELY BY MAKING WRONG REP RESENTATIONS WITHDRAWN SUM OF 9.18 CRORES BETWEEN 2 8 .12.2017 TO 02.01.2018 FROM THE ATTACHED BANK ACCOUNT OF PUNJAB NATIONAL BANK, NANAPETH, PUNE. THE HONBLE HIGH COURT VIDE PARA 15, ORDER DATED 05.01.2018 CATEGORICALLY HELD IT IS AXIOMATIC THAT THE EX TRAORDINARY WRIT JURISDICTION OF ISSUING PREROGATIVE WRITS WOULD NOT BE EXERCISED WHEN THE CONDUCT OF THE PETITIONER IS NOT CLEAN. A PETITIONER SEEKING AN EXTRA ORDINARY RELIEF FROM THE COURT IS NOT ONLY EXPECTED TO COME WITH CLEAN HANDS BUT SO KEEP IT, T ILL THE DISPOSAL OF THE PETITION. IN THE ABOVE FACTS WE ARE OF THE VIEW THAT THE CONDUCT OF THE PETITIONER DURING THE PENDENCY OF THE PETITION DISENTITLES IT TO ANY RELIEF UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. THEREFORE WE DISMISS THE PETITION. THE HONBLE HIGH COURT FOUND THE CONDUCT OF THE PRESIDENT OF PETITIONER (APPLICANT) AND EVEN THE TAX RECOVERY OFFICER W AS WILLFULLY DISOBEDIENT OF THE ORDER DATED 28.11.2017. THE HONBLE HIGH COURT THUS, HELD THAT PRIMA FACIE CIVIL CONTEMPT UNDER SECTIO N 2(B) OF THE CONTEMPT OF COURTS ACT, 1971 AND CRIMINAL 6 S A NO S . 1 21 TO 126 /P U N/201 8 CONTEMPT UNDER SECTION 2(C)(II) AND (III) OF THE CONTEMPT OF COURTS ACT, 1971 ARE TO BE INITIATED AND TAKING SUO MOTU NOTICE OF CONTEMPT, REGISTRY WAS DIRECTED TO ISSUE TWO SEPARATE NOTICES UNDER THE CONTEMPT OF COURTS ACT, 1971 AGAINST THE PRESIDENT OF APPLICANT SOCIETY MR. M.N. NAVALE AND TAX RECOVERY OFFICER. THE WRIT PETITION FILED BY APPLICANT WAS THUS, DISPOSED OF VIDE ORDER DATED 05.01.2018. THE HON'BLE SUPREME COURT IN PETITION FOR SPECIAL LE AVE TO APPEAL (C) NO(S).3703/2018, ARISING OUT OF IMPUGNED FINAL JUDGMENT AND ORDER DATED 05.01.2018 IN WRIT PETITION NO.13099/2017 DID NOT SHOW ANY INCLINATION TO INTERFERE BUT LEFT THE PETITIONER I.E. APPLICANT BEFORE US WITH THE REMEDY OF APPROACHING TH E HIGH COURT TO TENDER AN UNQUALIFIED APOLOGY AND ALSO TO MAKE THE OFFER OF PAYMENT/DEPOSIT AS MADE BEFORE THEM. THUS, T HE APPLICANT AGAIN APPROACHED THE HON'BLE HIGH COURT AGAINST THE SAID ORDER OF THE HONBLE HIGH COURT DATED 05.01.2018 . THE HONBLE HI GH COURT IN CIVIL APPLICATION (L) NO.6021 OF 2018 IN WRIT PETITION NO.13099 OF 2017 VIDE ORDER DATED 27.09.2018 HELD THAT BECAUSE OF VERY OBJECTIONABLE CONDUCT OF THE PRESIDENT OF APPLICANT, THE WRIT PETITION WAS DISMISSED AND THAT ORDER HAVING BEEN UNSUCC ESSFUL LY CHALLENGED BEFORE THE HON'BLE SUPREME COURT, HELD THAT THE WRIT PETITION COULD NOT BE RESTORED, WHICH STOOD DISMISSED. 4. SIMULTANEOUSLY, CRIMINAL SUO MOTU CONTEMPT PROCEEDINGS WERE CARRIED BY THE HONBLE HIGH COURT AGAINST THE PRESIDENT OF APP LICANT SOCIETY VIDE CRIMINAL SUO MOTU CONTEMPT PETITION NO.1 OF 2018 IN WRIT PETITION NO.13099/2017, ORDER DATED 28.08.2018. THE HONBLE HIGH COURT DIRECTED THE PRESIDENT OF APPLICANT & TAX RECOVERY OFFICER TO UNDERGO SIMPLE IMPRISONMENT IN CIVIL PRISON F OR SEVEN DAYS AND ALSO TO PAY FINE OF 2,000/ - EACH . THE HON'BLE SUPREME COURT VIDE ORDER DATED 05.10.2018 IN CRIMINAL APPEAL NO.1166 OF 2018 DID NOT INTERFERE IN SAID PROCEEDINGS. 7 S A NO S . 1 21 TO 126 /P U N/201 8 5. FURTHER, IT MAY BE POINTED OUT THAT THE APPLICANT ALSO APPROACHED TH E HON'BLE SUPREME COURT FOR DIRECTION TO DISPOSE OF PENDING APPEALS BEFORE THE TRIBUNAL VIDE SEPARATE PETITION. THE HONBLE APEX COURT IN PETITION FOR SPECIAL LEAVE TO APPEAL (C) NO(S).27942/2018, VIDE ORDER DATED 13.11.2018, ARISING OUT OF IMPUGNED FINAL JUDGMENT AND ORDER DATED 27.09.2018 IN CA NO.6021/2018 PASSED BY THE BOMBAY HIGH COURT HAS HELD THAT THERE IS NO MERIT IN THE PRAYER MADE BY THE APPLICANT FOR DIRECTIONS TO DISPOSE OF THE PENDING APPEAL BEFORE THE INCOME TAX APPELLATE TRIBUNAL. THE PETIT ION WAS THUS, DISMISSED ON 13.11.2018. 6 . THE APPLICANT HAS MOVED PRESENT STAY APPLICATIONS ON 16.11.2018. BEFORE ADDRESSING THE ISSUES RAISED BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE APPLICANT, IT MAY BE POINTED OUT THAT THE WRIT PETITION FILED BY APPLICANT AGAINST THE ORDER OF TRIBUNAL HAS BEEN FINALLY DISPOSED OF BY THE HONBLE HIGH COURT VIDE ORDER DATED 27.09.2018, AGAINST WHICH THE APPLICANT FILED SPECIAL LEAVE PETITION BEFORE THE HON'BLE SUPREME COURT, WHICH WAS DISMISSED ONLY ON 13.11.2018 AND NOW ON 16.11.2018, THE APPLICANT HAS MOVED THE STAY APPLICATIONS AGAIN BEFORE THE TRIBUNAL. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE APPLICANT WAS TIME AND AGAIN ASKED THAT SINCE WRIT PETITION FILED BY APPLICANT AGAINST ORIGINAL ORDER OF STAY OF ASSESSEE HAS BEEN DISPOSED OF BY THE HONBLE HIGH COURT THEN WHETHER THE TRIBUNAL HAS ANY POWER TO RE - LOOK INTO THE SAME FACTUAL ASPECTS AND WHETHER THERE IS ANY CHANGE IN THE CIRCUMSTANCES. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE APPLICANT ELABORA TELY TOOK US THROUGH THE FACTS ONCE AGAIN AND ALSO REFERRED TO DIFFERENT ORDERS OF THE HONBLE BOMBAY HIGH AND THE HON'BLE SUPREME COURT AND STRESSED THAT THERE ARE CERTAIN MATERIAL CHANGES AND HENCE, THE TRIBUNAL HAS THE POWER TO RE - ADJUDICATE THE ISSUE O F STAY IN THE HANDS OF APPLICANT. WHEN ASKED TO 8 S A NO S . 1 21 TO 126 /P U N/201 8 CLARIFY THE MATERIAL CHANGES, HE POINTED OUT THAT DIFFERENCE IN OUTSTANDING FIGURES DUE TO THE BANKS, DUE TO OTHER PARTIES AND THE WRIT PETITION FILED BY TEACHERS FOR RECOVERY OF OUTSTANDING SALARIES AND ALS O THE ACTION TAKEN BY BANKS IN ATTACHMENT FOR RECOVERY OF OUTSTANDING (WHICH WAS TAKEN EARLIER) . THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE APPLICANT STRESSED THAT THE HONBLE HIGH COURT HAS NOT FINALLY DISPOSED OF HIS PLEA OF GRANT OF STAY AND WRIT PE TITION WAS DISMISSED ON THE ISSUES OTHER THAN MAIN ISSUE , BECAUSE OF THE CONDUCT OF THE PRESIDENT OF APPLICANT. 7 . THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND, TOOK US THROUGH THE CONDUCT OF PRESIDENT OF APPLICANT AND THE H ONBLE HIGH COURT TAKING SUO - MOTU INITIATION OF CIVIL AND CRIMINAL CONTEMPT PROCEEDINGS AGAINST THE PRESIDENT OF APPLICANT AND HE ALSO REFERRED TO THE ORDER OF THE HON'BLE SUPREME COURT, WHEREIN THE APPLICANT FILED AN APPEAL BEFORE THE HON'BLE SUPREME COUR T AGAINST THE DISMISSAL OF WRIT PETITION BEFORE THE HON'BLE HIGH COURT, WHICH WAS DISMISSED BY THE HON'BLE SUPREME COURT ON 05.10.2018. THE APPLICANTS PLEA FOR RESTORATION OF WRIT PETITION WAS ALSO DISMISSED BY THE HONBLE SUPREME COURT AND EVEN THE PRAY ER FOR DISPOSAL OF APPEALS PENDING BEFORE THE TRIBUNAL WAS DISMISSED BY THE HON'BLE SUPREME COURT. 8 . ANOTHER POINT WHICH WAS POINTED OUT BY THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE THAT IF WE ACCEPT PLEA OF APPLICANT THAT WHEN THERE ARE NO FUNDS AVAILABLE , BUT AFTER RE - DEPOSITING THE AMOUNTS WRONGLY WITHDRAWN I.E. 9.18 CRORES AND FURTHER PAID INTEREST AS DIRECTED BY THE HONBLE HIGH COURT AGAINST THE SAID AMOUNTS UTILIZED BY IT , DEMONSTRATES THE AVAILABILITY OF FUNDS. 9 S A NO S . 1 21 TO 126 /P U N/201 8 9 . THE ISSUE WHICH ARISES BEFORE US HAS ALREADY BEEN ADJUDICATED BY THE TRIBUNAL VIDE ORDER DATE D 10.11.2017 , WHEREIN CERTAIN DIRECTIONS WERE GIVEN TO THE APPLICANT TO COMPLY WITH , SO THAT THE BALANCE OUTSTANDING DEMAND WOULD BE STAYED AND EVEN OUT OF TURN HEARING WAS GIVEN TO THE APPLICANT. HOWEVER, THE APPLICANT REFUSED TO COMPLY WITH THE CONDITIO NS IMPOSED BY THE TRIBUNAL AND FILED WRIT PETITION AGAINST THE ORDER OF TRIBUNAL BEFORE THE HONBLE HIGH COURT. THE SAID WRIT PETITION DECIDES TWO ISSUES I.E. FIRST BECAUSE OF MISCONDUCT OF THE PRESIDENT OF APPLICANT CERTAIN DIRECTIONS WERE GIVEN FOR INIT IATION OF CONTEMPT PROCEEDINGS ; AND ALSO WRIT PETITION FILED BY APPLICANT WAS DISMISSED. ANOTHER PETITION WAS MOVED BEFORE THE HONBLE HIGH COURT FOR FINAL DISPOSAL OF WRIT PETITION, WHICH WAS ALSO DISPOSED OF BY THE HONBLE HIGH COURT VIDE SEPARATE ORDER DATED 27.09.2018. THE ORDER OF THE HONBLE HIGH COURT READS AS UNDER: - 2. ON AN ORDER PASSED BY THIS COURT ON 5 TH JANUARY, 2018, DISMISSING THE WRIT PETITION, INTER ALIA, ON ACCOUNT OF A VERY OBJECTIONABLE CONDUCT OF THE PRESIDENT OF THE ORIGINAL PETITI ONER - APPLICANT BEFORE US AND THAT ORDER HAVING BEEN UNSUCCESSFULLY CHALLENGED BEFORE THE HON'BLE SUPREME COURT, WE DO NOT THINK THAT BY AN OBLIQUE OR INDIRECT METHOD, WE SHOULD ALLOW RESTORATION OF THAT WRIT PETITION WHICH STANDS DISMISSED. 10 . CONSEQUEN T THERETO, THE APPLICANT FILES SPECIAL LEAVE PETITION BEFORE THE HON'BLE SUPREME COURT AND PRAYED FOR DISPOSAL OF APPEALS PENDING BEFORE THE TRIBUNAL, WHICH WAS ALSO DISMISSED. IN SUCH SCENARIO, THE TRIBUNAL WHICH IS LOWER IN HIERARCHY TO THE HONBLE BOMB AY HIGH COURT AND THE HON'BLE SUPREME COURT, HAS NO POWER TO REVISIT THE ISSUE ON IDENTICAL FACTS , EXCEPT FOR THE CHANGE IN FIGURES AND MAY BE FOR FILING OF WRIT PETITIONS BY TEACHERS OF APPLICANT, WHICH WAS NOT THERE WHILE DECIDING ORIGINAL STAY APPLICATI ONS. FURTHER, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE APPLICANT HAS NOT POINTED OUT ANY MATERIAL CHANGE IN THE FACTS AND EVEN THE CHANGES WHICH HAVE BEEN POINTED OUT BY HIM , ARE NOT S UBSTANTIAL CHANGES IN FACTS. IN THE ABSENCE OF SUBSTANTIAL CHANGE IN FACTS, THE 10 S A NO S . 1 21 TO 126 /P U N/201 8 TRIBUNAL HAS NO POWER TO RE - LOOK INTO THE SAME FACTS AND DECIDE THE ISSUE DE NOVO . IT IS REITERATED THAT IN FACT, THERE ARE NO CHANGE S IN FACTS EXCEPT THE AMOUNTS AS CLAIMED BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE . T HE TRIBUNAL THUS, HAS NO POWER TO REVIEW OR REVISIT THE ISSUES ALREADY DECIDED ON SAME FACTS ESPECIALLY WHERE THE HONBLE HIGH COURT HAS DISMISSED THE WRIT PETITION AGAINST EARLIER STAY ORDER OF TRIBUNAL, WHERE THE HONBLE HIGH COURT HAD NOTED THE CONDUCT OF APPLICANT IN WRIT PETITION CHALLENGING THE STAY ORDER PASSED BY TRIBUNAL AND EVEN SUO MOTU INITIATED CIVIL AND CRIMINAL CONTEMPT PROCEEDINGS HELD THAT THE CONDUCT OF THE PETITIONER DURING THE PENDENCY OF THE PETITION DISENTITLES IT TO ANY RELIEF UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. THEREFORE WE DISMISS THE PETITION . THE HON'BLE SUPREME COURT HAS ALSO NOT ALLOWED THE PETITION OF APPLICANT FOR EARLY HEARING . H ENCE WE FIND NO JUSTIFI CATION IN THE PRESENT STAY APPLICATIONS MOVED BY APPLICANT AND THE SAME ARE DISMISSED . IN OUR CONSIDERED VIEW, SINCE THE APPLICANT HAS NOT COMPLIED WITH EARLIER DIRECTIONS OF THE TRIBUNAL TO DEPOSIT PART OF TAX AMOUNT WITHIN TIME FRAME FIXED, THEN EARLIER ORDER OF TRIBUNAL WOULD STAND THAT , IN CASE OF BREACH OF ANY OF THE SAID CONDITIONS, THE STAY GRANTED WOULD AUTOMATICALLY GET VACATED AND THE MATTER WOULD BE HEARD IN ORDINARY COURSE. HENCE, WE DISMISS THE STAY APPLICATIONS MOVED BY APPLICANT . 1 1 . IN TH E RESULT, ALL THE STAY APPLICATIONS OF APPLICANT ARE DISMISSED. ORDER PRONOUNCED ON THIS 18 TH DAY OF DECEMBER , 201 8 . SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWLA ) / ACCOUN TANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 18 TH D ECEM BER , 201 8 . GCVSR 11 S A NO S . 1 21 TO 126 /P U N/201 8 / COPY OF THE ORDER IS FORWARDED TO : 1. THE APP LICANT ; 2. THE RESPONDENT; 3. THE CIT(A) - 12 , PUNE ; 4. THE PR. CIT , CENTR AL, PUNE ; 5. THE DR A , ITAT, PUNE; 6. GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE