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

SA 9/ASR/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3267 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 8 month(s) 24 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 20-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 26-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RUPESH J AIN
• Keywords: Application of stay; Question of law; Extension of stay; Difference of opinion

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. A.D.JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER S.A. NOS. 08 & 09(ASR)/2016 (ARISING OUT OF ITA NOS.555 & 554(ASR)/2014) ASSESSMENT YEARS:2009-10 & 2008-09 HPCL MITTAL ENERGY LIMITED VILLAGE PHULOKHARI, THE: TALWANDI SABO, DISTT. BATHINDA, PUNJAB-151301 PAN:AABCG5231F VS. ACIT, CIRCLE-1 BATHINDA. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. RUPESH JAIN (ADV.) RESPONDENT BY: SH. RAHUL DHAWAN (DR) DATE OF HEARING: 29.07.2016 DATE OF PRONO UNCEMENT: 29.07.2016 ORDER PER T. S. KAPOOR (AM): THE STAY APPLICATIONS HAVE BEEN FILED BY THE ASSES SEE SEEKING AN EXTENSION OF STAY ALREADY GRANTED BY THE TRIBUNAL. 2. AT THE OUTSET, THE LEARNED AR SUBMITTED THAT ORI GINALLY THE STAY WAS GRANTED VIDE TRIBUNAL ORDER DATED 30.09.2014 FO R A PERIOD OF 180 DAYS, BUT THE APPEALS OF THE ASSESSEE COULD NOT BE DISPOSED OF WITHIN A PERIOD OF 180 DAYS, THEREFORE, ON AN APPLICATION FI LED BY ASSESSEE FOR SEEKING EXTENSION OF STAY THE APPLICATIONS WERE FIX ED FOR HEARING ON 05.06.2015 AND ON THAT DAY THE LEARNED DR MOVED AN APPLICATION AND THE STAY APPLICATIONS ALONG WITH APPEALS WERE FINAL LY HEARD ON 26.08.2015. IT WAS FURTHER SUBMITTED THAT HONBLE J UDICIAL MEMBER AND S.A NOS.08 & 09(ASR)/2016 AR ISING OUT OF ITA NOS.555 & 554(ASR)/2014 ASSESSMENT YEARS:2009-10 & 2008-09 2 HONBLE ACCOUNTANT MEMBER TOOK DIVERGENT VIEWS ON T HE APPEALS AND THEREFORE, HONBLE PRESIDENT OF THE TRIBUNAL REFERR ED THE MATTER TO THE THIRD MEMBER. IN THE MEAN TIME THE TRIBUNAL VIDE OR DER DATED 03.02.2016 EXTENDED THE STAY EARLIER GRANTED TO THE APPLICATION FOR A PERIOD OF 180 DAYS OBSERVING THAT DESPITE DIVERGENT VIEW EXPRESSED BY HONBLE ACCOUNTANT MEMBER REGARDING ISSUE IN APPEAL THE DELAY IN DISPOSING OF THE APPEALS WERE NOT ATTRIBUTABLE TO T HE APPLICANT. THE LEARNED AR FURTHER SUBMITTED THAT THE MATTER REFERR ED TO THE HONBLE THIRD MEMBER WAS FIXED FOR HEARING ON 10.05.2016 HO WEVER, THE BENCH COULD NOT HOLD COURT ON THAT DATE AS THE MATTER GOT ADJOURNED SINE DIE. THE LEARNED AR SUBMITTED THAT STAY ALREADY EXTENDED BY THE HONBLE TRIBUNAL IS DUE TO EXPIRE ON 03.08.2016. IT WAS SUB MITTED THAT AS THE DELAY IN DISPOSAL OF THE APPEALS IS NOT ATTRIBUTABL E TO THE ASSESSEE AND THE FACTS AND CIRCUMSTANCES OF THE APPEALS REMAIN T HE SAME, THE STAY MAY BE EXTENDED FOR A FURTHER PERIOD AS THE HONBLE TRIBUNAL MAY DEEM FIT, OR TILL THE DISPOSAL OF THE APPEALS, WHICHEVER IS EARLIER. 3. THE LEARNED DR, ON THE OTHER HAND, SUBMITTED THA T THE HONBLE TRIBUNAL CANNOT EXTEND THE STAY FURTHER AS THE STAT UE HAS FIXED THE NUMBER OF DAYS FOR WHICH THE TRIBUNAL CAN GRANT THE STAY AND IN THIS RESPECT FILED WRITTEN SUBMISSIONS WHEREIN THE PROVI SIONS OF SEC. 254(2A) WERE BROUGHT TO OUR NOTICE. THE LEARNED DR SUBMITTE D THAT EXTENSION OF STAY BEYOND A PERIOD OF 365 DAYS IS NOT WITHIN THE POWERS OF THE TRIBUNAL. RELIANCE IN THIS RESPECT WAS PLACED ON AN ORDER OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. ECOM GILL COFFEE TRADING (P.) S.A NOS.08 & 09(ASR)/2016 AR ISING OUT OF ITA NOS.555 & 554(ASR)/2014 ASSESSMENT YEARS:2009-10 & 2008-09 3 LTD.23 TAXMAN.COM 235 (KAR.), WHEREIN IT HAS BEEN HELD THAT THE ITAT CANNOT EXTEND THE INTERIM ORDER OF STAY BEYOND THE STATUTORY PERIOD OF 365 DAYS EVEN IF THE DELAY IN DISPOSING OF THE APPE AL IS NOT ATTRIBUTABLE TO THE ASSESSEE AND, IN THIS RESPECT, FILED A COPY OF THE ORDER PASSED BY HONBLE KARNATAKA HIGH COURT. INVITING OUR ATTENTIO N TO THE FINDINGS OF THE HONBLE COURT, THE LEARNED DR SUBMITTED THAT TH E HONBLE COURT HAS HELD THAT THE INCOME TAX APPELLATE TRIBUNAL IS NOT AN AUTHORITY AKIN TO A COURT BUT IS A SPECIAL TRIBUNAL WITH LIMITED JURISD ICTION, AS INDICATED IN THE STATUTORY PROVISIONS AND FOR A PRECISE PURPOSE. 4. THE LEARNED AR, ON THE OTHER HAND, INVITED OUR A TTENTION TO AN ORDER PASSED BY THE HONBLE PUNJAB & HARYANA HIGH C OURT IN THE CASE OF PRINCIPAL CIT, GURGAON VS. M/S CARRIER AIR CONDITIO NING AND REFRIGERATION LIMITED IN ITA NO.5 OF 2016, VIDE ITS ORDER DATED 25.05.2016, AND SUBMITTED THAT THE HONBLE PUNJAB & HARYANA HIGH CO URT, AFTER RELYING ON THE DECISION OF THE HONBLE DELHI HIGH COURT, IN THE CASE OF PEPSI FOODS PVT. LIMITED VS. ACIT & ANORS., HAS HELD THAT WHERE THE APPEAL COULD NOT BE DECIDED BY THE TRIBUNAL AND THE DELAY IN DISPOSAL OF THE APPEAL IS NOT ATTRIBUTABLE TO THE ASSESSEE IN ANY M ANNER, THE INTERIM PROTECTION CAN CONTINUE BEYOND 365 DAYS IN DESERVIN G CASES AND IN THIS RESPECT, OUR ATTENTION WAS INVITED TO PARA -17 OF T HE ABOVE SAID ORDER. 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT IT IS AN UN DISPUTED FACT THAT THE DELAY IN DISPOSAL OF THE APPEALS HAS OCCURRED DUE T O THE DIFFERENCE OF OPINION BETWEEN THE JUDICIAL MEMBER AND THE ACCOUNT ANT MEMBER. THE S.A NOS.08 & 09(ASR)/2016 AR ISING OUT OF ITA NOS.555 & 554(ASR)/2014 ASSESSMENT YEARS:2009-10 & 2008-09 4 HONBLE PRESIDENT OF THE ITAT HAD REFERRED THE MATT ER FOR DECISION BY A THIRD MEMBER AND THE APPEALS WERE LISTED FOR HEARIN G ON 10.05.2016, ON WHICH DATE, THE MATTER GOT ADJOURNED SINE DIE, AS I S APPARENT FROM THE NOTE SHEET PLACED IN THE FILE IN ITA NO.554(ASR)/20 14. THEREFORE, THE DELAY IN THE DISPOSAL OF THE CASES CANNOT BE ATTRIB UTED TO THE ASSESSEE. THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF M/S CARRIER AIR CONDITIONING AND REFRIGERATION LIMITED (SUPRA) HAS FRAMED THE FOLLOWING QUESTION OF LAW AND HAS ADJUDICATED THE SAME IN FAV OUR OF ASSESSEE: (I) WHETHER THE HONBLE ITAT HAS ACTED IN CONTRAVE NTION OF THE SECOND PROVISO OF SECTION 254(2A) OF THE INCOME TAX ACT, 1 961 AS THE COMBINED PERIOD OF STAY HAS EXCEEDED 365 DAYS ? (II) WHETHER THE ORDER OF THE ITAT BE TREATED AS VO ID AB INITIO IN THE LIGHT OF THIRD PROVISO TO SECTION 254(2A) OF THE INCOME TAX ACT, 1961, WHICH PROVIDES THAT STAY OF DEMAND STANDS VACATED AFTER E XPIRY OF A PERIOD OF 365 DAYS EVEN IF DELAY IN DISPOSAL OF APPEAL IS NOT ATTRIBUTABLE TO THE ASSESSEE ? THIS QUESTION HAS BEEN DECIDED IN PARA-17 OF ORDER, WHICH READS AS UNDER: 17. IN VIEW OF THE ABOVE, THE QUESTION POSED IN PA RA 5 ABOVE IS ANSWERED IN THE AFFIRMATIVE. ACCORDINGLY, IT WOULD BE CONCLUDED THAT WHEREVER THE APPEAL COULD NOT BE DECIDED BY THE TRI BUNAL DUE TO PRESSURE OF PENDENCY OF CASES AND THE DELAY IN DISPOSAL OF T HE APPEAL IS NOT ATTRIBUTABLE TO THE ASSESSEE IN ANY MANNER, THE INT ERIM PROTECTION CAN CONTINUE BEYOND 365 DAYS IN DESERVING CASES. WE FIND THAT THAT THIS IS A DESERVING CASE FOR EXTE NSION OF STAY BEYOND A PERIOD OF 365 DAYS, AS THE REASON FOR DELAY IN DISP OSAL OF THE APPEALS IS NOT ATTRIBUTABLE TO THE ASSESSEE, BUT DUE TO NON FU NCTIONING OF THE BENCH. THEREFORE, KEEPING IN VIEW THE ABOVE DECISIO N OF THE HONBLE PUNJAB & HARYANA HIGH COURT WHICH IS THE JURISDICTI ONAL HIGH COURT, SO FAR AS REGARDS THE PRESENT ASSESSEE, WE EXTEND THE STAY FOR A FURTHER S.A NOS.08 & 09(ASR)/2016 AR ISING OUT OF ITA NOS.555 & 554(ASR)/2014 ASSESSMENT YEARS:2009-10 & 2008-09 5 PERIOD OF 90 DAYS, OR TILL THE DISPOSAL OF THE APPE ALS BY THIRD MEMBER, WHICH EVER IS EARLIER. THE TERMS AND CONDITIONS OF THE ORIGINAL STAY ORDER AS WELL AS OF THE EXTENDED STAY ORDER WILL CONTINUE TO REMAIN THE SAME. 6. IN VIEW OF THE ABOVE, THE STAY APPLICATIONS FILE D BY ASSESSEE ARE ALLOWED IN THE MANNER AS STATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 29 .07.2016. SD/- SD/- (A.D. JAIN) (T. S. KAPO OR) JUDICIAL MEMBER ACCOUNTANT MEMBE R DATED: 29.07.2016. /PK/ PS. 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