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2016 (4) TMI 391 - ITAT DELHI

2016 (4) TMI 391 - ITAT DELHI - TMI - Stay petition - Held that:- Onus placed upon the assessee of being ready to argue has been discharged as the adjournments moved, we find were so necessitated for reasons beyond the control of the assessee as in the circumstances brought out by the Ld.AR judicial propriety demanded that the firm engaged by the assessee does not argue before the Constitution of the Bench on the specific dates. Thus where for reasons beyond its control, the Ld.AR was required t .....

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te of hearing which we find is fixed on 22.03.2016.

In the result the stay petition of the assessee is allowed. - S.A. 138/Del/2016, In I.T.A.No. 750/Del/2015, - Dated:- 18-3-2016 - Diva Singh, Judicial Member and J.S.Reddy, Accountant Member G.C. Srivastava, Daksh Bhardwaj and Anubhav Jain, Advs. for the Appellant Ravi Jain, CIT DR for the Respondent ORDER Diva Singh, Judicial Member:- 1. The assessee has filed the present stay petition in ITA No. 750/Del/2015 pertaining to assessmen .....

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l is not attributable to the assessee. 2. In support of the prayer, reliance is placed on the sequence of events of the Court proceedings summarized in page 5 of the stay petition. On considering the record of the Court proceedings in ITA No.750/Del/2015 it was found that the position as summarized in page 5 of the petition and as submitted by the Ld.AR was found to be incorrect as contrary to the submissions the record showed that on two specific dates i.e 14/12/2015 and 17/02/2016 the adjournm .....

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o the peculiar situation which arose where the firm of the authorized representative engaged to argue by the assessee could not appear due to "conflict of interest" which arose as the presiding Member's son was professionally associated with the Ld. AR's Firm. The said submission was also found to be incorrect as the presiding Member on 14.12.2015 as per record does not have a son. Even otherwise comparing the recordings made in the order sheet in the ITA No. 750/Del/2015 and t .....

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case that the assessee was not ready to argue. The narrative of the assessee is reproduced here under:- 8. "24 September 2015: Spill over of the matter of AY 2009- 10 from 23 September 2015. The matter was heard and the order was pronounced on 28 September 2015. 9. 14 December 2015: The constitution of the Bench comprised of one Hon'ble member who had a conflict of interest with the legal counsel for the applicant's case. The adjournment was sought for that reason. However, the sai .....

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atters were going on. 11. 17 February 2016: The matter was rescheduled to 29 February 2016 as one of the Hon'ble ITAT members had a conflict of interest with the legal counsel for the applicant's case. 12. 29 February 2016 : The Hon'ble bench directed the departmental representative (DR) to go through the submission filed by the applicant and the matter was adjourned to 22 March 2016." 4.1. As per Annexure enclosed it was submitted the original Constitution of the Bench on 14.12 .....

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untant Member), is professionally associated with out firm, M/s G.C.Srivastava and Associates (Advocates), which has been engaged to represent the assessee in the captioned matter. In such circumstances, we are unable to argue the aforesaid matter and an adjournment is sought." 4.3. It was submitted that since the Ld.AR was not aware of the re-constitution of the Bench the afore-said adjournment petition remained on record. Thus caught by surprise it could not be taken back. In those circum .....

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and 29.02.2016 can be said to be correctly addressed. However, only in regard to 24.09.2015, we find that there is a factual inaccuracy in as much the order sheet does not take note of "spill over of the matter of AY 2009-10" and instead the appeal is adjourned on the grounds of the paucity of time. For ready-reference it is reproduced hereunder:- 24.09.2015 "Due to paucity of time, hearing of this case is adjourned on 14.12.2015. Both the parties informed in the open Court." .....

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a period of 365 days can be given to the assessee or not, we first deem it appropriate to extract the relevant provisions of the income Tax Act, 1961 hereunder 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 of four ye .....

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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 originally all .....

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ay 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." 7.1. A plain reading of the same shows that the Tribunal is vested 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 terms of the second proviso, on an application by the assessee the stay may be extended by the Tribunal for a further period of another six mon .....

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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 ab .....

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rrect 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 assessees to whom the delay is not attributable. It is for this reas .....

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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 the Bombay High Court in Narang Overseas (supra), with which .....

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016 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 just .....

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in PML Industries Ltd. vs CCE [2013] 22 GSTR 83 (PandH) which was relied upon by the petitioners before the Hon'ble Delhi High Court in Pepsi Foods Pvt.Ltd. (cited supra) in para 20. The same is extracted hereunder:- 20. The learned counsel for the petitioners had also referred to a decision of the Division Bench of the Punjab and Haryana High Court in PML Industries Ltd. (supra). Although that decision pertained to section 35C(2A) of the Central Excise Act, 1944, the provision under consid .....

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Punjab and Haryana High Court held as under (page 117 of 22 GSTR):- "Though the right of appeal is a creation of Statute and it can be exercised only subject to the conditions specified therein, but the conditions specified have to be in relation to the assessee as some thing which is required to be complied with by the assessee. But where the assessee has no control over the functioning of the Tribunal, then the provision of vacation of stay cannot be sustained. The assessee having prefer .....

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thin 180 days, the vacation of stay is a harsh and onerous and unreasonable condition. The condition of vacation of stay for the inability of the Tribunal to decide the appeal is burdening the assessee for no fault of his. Such a condition is onerous and renders the right of appeal as illusory. An order passed by a judicial forum is sought to be annulled for no fault of assessee. Therefore, in terms of judgments in Anant Mills Co. Ltd. and Nand Lal cases (supra), such condition of automatic vaca .....

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