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2014 (2) TMI 1037 - HC - Income TaxPower to grant stay u/s 254(2A) of the Act – Stay to be granted beyond 365 days – Held that:- The legislative mandate has to be respected and the courts do not legislate but interpret the statute as a legislative edict - The third proviso after amendment, undoubtedly bars and prohibits the tribunal from extending interim stay order beyond 365 days - It stipulates deemed vacation and imposes no fault consequences in strict terms - The language is clear and therefore has to be respected - However, the provision does not bar or prohibit an assessee from approaching the High Court by way of writ petition for continuation, extension or grant of stay. The High Court in appropriate matters can grant or extend stay even when the tribunal has not been able to dispose of an appeal within 365 days from the date of grant of initial stay - This perhaps appears to be and apparently is the intention of the Parliament - Relying upon Jethmal Faujimal Soni vs. Income Tax Appellate Tribunal [2010 (4) TMI 747 - Bombay High Court ] - Grant of stay by the tribunal is not a matter of right, but is decided by a speaking order, recording prima facie view on merits - In case there is an error or the tribunal has erred in granting stay, Revenue is not without remedy and can approach the High Court in accordance with law – the Revenue is the appellant before the High Court in disproportionately large percentage of cases, being aggrieved by the finding/adjudication by the tribunal on the question of law and fact - Appeals are preferred by the Revenue mostly in cases where the tax demand is ₹ 10 lakhs or above - The figures/data does indicate that in substantial number of matters, Revenue may not have succeeded before the tribunal in sustaining the tax demand. In view of the third proviso to Section 254(2A) of the Act substituted by Finance Act, 2008 with effect from 1st October, 2008, tribunal cannot extend stay beyond the period of 365 days from the date of first order of stay - In case default and delay is due to lapse on the part of the Revenue, the tribunal is at liberty to conclude hearing and decide the appeal, if there is likelihood that the third proviso to Section 254 (2A) would come into operation. Third proviso to Section 254 (2A) does not bar or prohibit the Revenue or departmental representative from making a statement that they would not take coercive steps to recover the impugned demand and on such statement being made, it will be open to the tribunal to adjourn the matter at the request of the Revenue - An assessee can file a writ petition in the High Court pleading and asking for stay and the High Court has power and jurisdiction to grant stay and issue directions to the tribunal as may be required - Section 254(2A) does not prohibit/bar the High Court from issuing appropriate directions, including granting stay of recovery. Determination of Arm’s length price – Held that:- Determination of arm’s length pricing on international transactions and the tax amount involved which includes interest under Section 234B of the Act - By the order dated 4th January, 2013, stay was extended by 180 days or till the disposal of the appeal, whichever occurs first.
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