TMI Blog2015 (8) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... sult in the order to be passed under section 143(3) read with section 263, becoming time barred. Hence we refrain from staying the said assessment proceedings. Be it as it may, as we are convinced that the balance of convenience is in favour of the assessee, we stay the operation of the order to be passed under section 143(3) read with section 263 of the Act for the assessment year 2009-10 for a period of 60 days, from the date of passing of such an order under section 143(3) read with section 263 or disposal of the appeal. Stay application is partly allowed. - S. A. No. 13 /Del/ 2015inI. T. A. No. 3339 /Del/ 2014 - - - Dated:- 21-1-2015 - J. SUDHAKAR REDDY AND C. M. GARG, JJ. Pankaj Garg and Milind Garg for the appellant Smt. Sulekha Verma for the respondent ORDER J. Sudhakar Reddy (Accountant Member).- By this stay application the assessee seeks stay of proceedings arising out of an order passed under section 263 of the Income-tax Act, 1961 (hereinafter referred to as the Act ), by the Commissioner of Income-tax, Noida for the assessment year (hereinafter referred to as 'the A.Y') 2009-10, on March 30, 2014. 2. Learned counsel for the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment year is not before it, he submitted that the Tribunal has been bestowed with power to stay all the proceedings which arose as a consequence of the proceedings before it and submitted that the order passed by the Assessing Officer under section 143(3) for the assessment year 2011-12 is on the lines of the order of the learned Commissioner of Income-tax passed under section 263 for the assessment year 2009-10. He relied on the decision of the Mumbai B Bench of the Income-tax Appellate Tribunal in S. A. No. 126/ Mum/12 arising out of I. T. A. No. 435/Mum/12 in the case of Maharashtra Housing and Area Development Authority v. ADIT (E) vide order dated March 16, 2012, for the proposition that, the language of the proviso to section 254(2A) was that, the power to grant the stay can be exercised over proceedings which are strictly not in appeal before the Tribunal but are related to the appeal. The Tribunal had held as follows : Where circumstances so justify, and if the language of the proviso to section 254(2A) warrants it, the power to grant stay can also be exercised over proceedings which are strictly not in appeal before the Tribunal but are related to the appeal. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retrieved. 10. Smt. Sulekha Verma, the learned Departmental representative on the other hand vehemently opposed the contentions of the assessee. At the outset she pointed out that the statement of the assessee at para 5 of the stay application, that a copy of the stay application dated January 7, 2015, was served on the Departmental representative on that day itself, is factually incorrect. She submitted that both the stay petitions pertain to I.T. A. No. 3339/Del/2014 and that both were received only on January 12, 2015 from the Registry of the Income-tax Appellate Tribunal. She further drew the attention of the Bench to pages 76 and 77 of the paper book and argued that both these notices were given by the Registry of the Income- tax Appellate Tribunal, only on January 12, 2015. On the merits of the case, she submitted that the appeal for the assessment year 2011-12 is not before the Tribunal and hence no order of stay can be passed for this particular assessment year. She submitted that the learned Commissioner of Income- tax (Appeals) had already disposed of the appeal filed by the assessee for the assessment year 2011-12, against an order passed under section 143(3) by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s can be attached and the allegations of learned counsel for the assessee of illegality, arbitrariness, etc., are false and devoid of merit. She submitted that at best the appeal can be heard on an early date, on an out of turn basis, but no stay of any type whatsoever should be granted to the assessee. 12. She further submitted that the assessee has no prima facie case and for this she had given written submission and relied on the order of the learned Commissioner of Income-tax (Appeals) for the assessment year 2011-12. She opposed each and every contention of the assessee. 13. Replying learned counsel for the assessee Mr. Pankaj Garg produced evidence in the form of a stamp of the Departmental representative's office on the duplicate appeal set, to demonstrate that all the stay petition papers were handed over to the Departmental representative's office on January 7, 2015. He controverted the submissions of the learned Departmental representative and submitted that the Tribunal has inherent power to stay all ancillary proceedings. He reiterated all the contentions raised before us. 14. After hearing the rival contentions and considering the papers on record and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment year 2011-12 is directly related to the appeal filed by the assessee against an order passed by the learned Commissioner of Income-tax (Noida) under section 263 for the assessment year 2009-10. All the other judgments quoted as precedents by learned counsel for the assessee do not in our view help the case of the assessee. So we do not elaborate them. 18. Coming to the decisions relied upon by the learned Departmental representative we find that in these judgments wherein general propositions, as regards to the power of the Tribunal to grant stay, have been spelt out. Hence we do not elaborate them. 19. In view of the above discussion the prayer of the assessee to stay the entire proceedings, etc., for the assessment year 2011-12 is rejected. 20. We now take up the prayer of the assessee for staying the whole of the proceedings, for the assessment year 2009-10. The argument of the assessee that a perusal of the original order passed under section 143(3) of the Act on December 30, 2011, prima, facie demonstrates that the Assessing Officer had granted deduction under section 80-IA of the Act, after obtaining certain details and documents and hence the order pas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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