TMI Blog2016 (4) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the record it was submitted that the assessee has been ready to argue the appeal on all the dates the appeal came up for hearing. It was submitted that infact the hearing had concluded on 03.09.2015 and thereafter it was re-fixed for clarification on a few dates and finally released for a fresh hearing. Thus it was submitted that the hearing has not concluded in the stipulated period of one year on account of no fault of the assessee. 3. Mr. A.Govil, CIT DR appearing on behalf of the Revenue considering the facts and submissions on record, had no objection if the stay is extended. 4. We have heard the rival submissions and perused the material available on record. In the facts of the present case, we are called upon to decide whether in the peculiar facts and circumstances of the case, stay beyond a period of 365 days can be granted to the assessee or not. It is evident from record that stay for a period of one year i.e. 365 days has already been granted by the ITAT. In the circumstances, we deem it appropriate to extract the relevant provisions of the income Tax Act, 1961 for ready-reference:- 254. Orders of Appellate Tribunal (1) The Appellate Tribunal may, afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee. The third proviso of sub-section (2A) of section 255 of the Act which curtailed the powers of the ITAT to grant stay beyond a period of 365 days was considered by the Jurisdictional High Court in Pepsi Foods Pvt.Ltd.(cited supra). After taking into consideration the decision rendered in the case of Maruti Suzuki India [2014] 44 taxman.com.166 (Del.) it was held that the Division Bench of the High Court in the case of Maruti Suzuki s was not called upon to examine the Constitutional validity of the third proviso to Section 254(2A) of the said Act and the said issue had been left open. Thus examining the amendment carried out by the Finance Act, 2008 in the third proviso which introduced the words even if the delay in disposing of the appeal is not attributable to the assessee the Jurisdictional High Court held that the Legislature created a hostile discrimination against those assessees who are law abiding and did not cause any delay in their respective appeals by putting them in the same category as those who have delayed the hearing after having obtained the stay. Holding the Amendment carried out by the Finance Act 2008 as violating the non-discrimination clause o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there is no impediment to the Tribunal to extend stay for a period beyond 365 days in deserving cases. Reliance may also be placed on order dated 01.02.2016 in SA No.-18/Del/2016 in ITA No.414/Del/2015 in the case M/s Jaypee Infratech Ltd.vs ACIT. In the said background reverting to the facts of the present case we find that though on a bare reading of the recordings made in the order sheet by the Co-ordinate Bench on different dates it is borne out that the adjournments have been moved by the Ld.AR however, when considering the circumstances which necessitated the Ld.AR to move the adjournment petitions, we are of the view that the reasons justifying such an action cannot be faulted with and have to be accepted. In the circumstances, we find where the conduct of the Ld.AR was guided by judicial propriety, we have no hesitation in holding that the adjournments moved on behalf of the assessee could not be considered to be an act of delaying the disposal of appeals or to drag out the hearing after having obtained the stay. We find that more or less factually similar position was considered by the Hon ble Punjab Haryana High Court in PML Industries Ltd. vs CCE [2013] 22 GSTR 83 (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nand Lal cases (supra), such condition of automatic vacation of stay on the expiry of 180 days, has to be read down to mean that after 180 days the Revenue has a right to bring to the notice of the Tribunal the conduct of the assessee in delay or avoiding the decision of appeal, so as to warrant an order of vacation of stay. If the provision is not read down in the manner mentioned above, such condition suffers from illegality rendering the right of appeal as redundant . . . Consequently, the second proviso in sub-section (2A) of section 35C is ordered to be read down to mean that after 180 days, the Revenue has a right to seek vacation of stay on proof of the fact that the assessee is the one, who is defaulted or taken steps to delay the ultimate decision. The said court read down the provision in question in much the same manner as did the Bombay High Court in the case of Narang Overseas (supra). The object being that, if the provision were to be read strictly, it would render the right of appeal to be illusory and for no fault of the assessee. 4.3. Considering the above legal precedent, we hold that in deserving cases, the ITAT is empowered to extend stay bey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee to ensure the availability of his counsel on 24.11.2015. The need and necessity to do so arose only on account of the fact that the Co-ordinate Bench deemed it necessary to re-fix the appeal for clarification vide the aforeextracted order dated 05.11.2011. The onus and responsibility to ensure representation arose only on receiving the order dated 05.11.2015. There is nothing on record to show when the order was communicated to the assessee. In the circumstances, we find that the conduct of the Ld.AR on behalf of the assessee in moving the afore-said request seeking time on 24.11.2015 was bonafide and reasonable. The said adjournment request pleading time cannot in these circumstances lead to construing that the assessee is delaying the hearing. Being satisfied by the conduct of the assessee evidencing from record, we find that delay in deciding the appeal cannot be attributed to the assessee. Thus, relying upon the principle laid down by the Hon ble High Court in Pepsi Foods Pvt. Ltd. (cited supra) and as considered in M/s Sunlife India Services Centre Pvt. Ltd. (cited supra) and M/s Jaypee Infratech Ltd. vs ACIT (cited supra) the stay is extended for a period of six months ..... X X X X Extracts X X X X X X X X Extracts X X X X
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