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2016 (4) TMI 387 - ITAT DELHI

2016 (4) TMI 387 - ITAT DELHI - TMI - Stay of demand - Held that:- Delay in deciding the appeal cannot be attributed to the assessee. The stay is extended for a period of six months or disposal of appeal whichever is earlier. It goes without saying that no adjournment on any unreasonable ground shall be sought by the assessee on the next date of hearing - S. A. 211/Del/2016 (In ITA No.-1681/Del/2015) - Dated:- 7-4-2016 - Smt Diva Singh, Judicial Member And Sh. L. P. Sahu, Accountant Member For t .....

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rder dated 01.04.2015 which was extended by another period of six months. Referring 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 .....

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riod 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, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. (2A) In every appeal, the Appellate Tribunal, where it is possible, may hear and decide such appeal within a period .....

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d of stay specified in that order : Provided further that where such appeal is not so disposed of within the said period of stay as specified in the order of stay, the Appellate Tribunal may, on an application made in this behalf by the assessee and on being satisfied that the delay in disposing of the appeal is not attributable to the assessee, extend the period of stay, or pass an order of stay for a further period or periods as it thinks fit; so, however, that the aggregate of the period orig .....

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der of stay shall stand vacated after the expiry of such period or periods, even if the delay in disposing of the appeal is not attributable to the assessee. 4.1. A plain reading of the above makes it clear that the Statute has vested the ITAT with the power to grant stay initially for a period of six months in terms of the first proviso to sub-section (2A) of section 254. In case the appeal is not decided within the said period, the second proviso, on an application by the assessee, empowers th .....

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el.) 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 creat .....

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reproduced hereunder:- 24. Furthermore, the petitioners are correct in their submission that unequals have been treated equally. Assessees who, after having obtained stay orders and by their conduct delay the appeal proceedings, have been treated in the same manner in which assessees, who have not, in any way, delayed the proceedings in the appeal. The two classes of assessees are distinct and cannot be clubbed together. This clubbing together has led to hostile discrimination against the assess .....

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l achieved by the provision as it stands. On the contrary, the clubbing together of 'well behaved' assessees and those who cause delay in the appeal proceedings is itself violative of Article 14 of the Constitution and has no nexus or connection with the object sought to be achieved. The said expression introduced by the Finance Act, 2008 is, therefore, struck down as being violative of Article 14 of the Constitution of India. This would revert us to the position of law as interpreted by .....

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IT dated 18.03.2016 in SA No.-138/Del/2016. For ready-reference, we extract the following paras from M/s Sunlife India Services Centre Pvt. Ltd. vs DCIT :- 7.2. Thus on considering the judicial precedent, we find that 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 t .....

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R 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&H) which was relied upon by the petitioners before the Hon ble Delhi High C .....

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ervice Tax Appellate Tribunal. The provision indicated that the waiver would stand vacated after 180 days. In that context, the question arose, as to whether the second proviso to sub-section (2A) of section 35C was directory and that the Tribunal, in appropriate circumstances, could extend the period of stay beyond 180 days. While considering the said question, the Punjab and Haryana High Court held as under (page 117 of 22 GSTR) : "Though the right of appeal is a creation of Statute and i .....

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is made out, is compelled to pay the duty demanded and penalty levied, if the appeal is not decided within 180 days. The assessee has no control in respect of matters pending before the Tribunal ; in the matter of availability of infrastructure ; the members of the Tribunal and the workload. Therefore, for the reason that the Tribunal is not able to decide appeal within 180 days, the vacation of stay is a harsh and onerous and unreasonable condition. The condition of vacation of stay for the ina .....

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ce 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 asses .....

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d 365 days. We thus proceed to consider the facts of the present case. On considering the facts which are found recorded in the Court proceedings by way of order sheet entries in ITA No.1681/Del/2015, we find that hearing in ITA No.-1681/Del/2015 stood concluded as per record on 03.09.2015. Thereafter, the appeal was fixed for clarification by the Co-ordinate Bench on 05.11.2015 in terms of the following direction:- 05.11.2015 Refix the matter for certain clarification on 24th Nov.2015. Issue no .....

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s none was present on behalf of the Revenue. On 02.02.2015 it was adjourned on the request of the Revenue to 04.04.2016 i.e. today and even today it has been adjourned on the written request of the Revenue. 4.5. Accordingly, we find from the record that except for seeking an adjournment on 24.11.2015 on all the other dates the appeal has been adjourned on the request of the Revenue. The circumstances which led the assessee to seek an adjournment on 24.11.2015 can be best addressed in assessee s .....

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