TMI Blog2016 (5) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... NGH, JM By the present stay petition in ITA No.764/Del/2015, the assessee prays for extension of stay of outstanding demand of ₹ 4,07,87,088/-. 2. Referring to material available on record it was submitted by the Ld.AR that originally stay for a period of 6 months was granted by the ITAT vide order dated 05/03/2015 in S.A No.-141/Del/2015. In terms of the direction therein, it was submitted the assessee had deposited ₹ 60 Lacs towards outstanding dues. The appeal could not be decided within the said period accordingly the stay on the request of the assessee was extended for a further period of 6 months vide order dated 15/09/2015 in S.A No.457/Del/2015. The fact that ₹ 60 Lacs had been paid by the assessee it was submitted had been taken note of by the ITAT in the said order. In the said background it was his submission that the appeal still has not been decided for no fault of the assessee. Inviting attention to Annexure-8 to the stay petition filed it was submitted that on each of the dates when the appeal came up for hearing it was adjourned on the request of the Department. Accordingly it was his prayer that the stay may be extended for a period of six ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee 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 allowed and the period or periods so extended or allowed shall not, in any case, exceed three hundred and sixty-five days and the Appellate Tribunal shall dispose of the appeal within the period or periods of stay so extended or allowed: Provided also that if such appeal is not so disposed of within the period allowed under the first proviso or the period or periods extended or allowed under the second proviso, which shall not, if any case, exceed three hundred and sixty-five days, the order 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 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. The second proviso it is seen on an application moved by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ees should not misuse the stay orders granted in their favour by adopting delaying tactics is not at all 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 the Bombay High Court in Narang Overseas (supra), with which we are in full agreement. Consequently, we hold that, where the delay in disposing of the appeal is not attributable to the assessee, the Tribunal has the power to grant extension of stay beyond 365 days in deserving cases. The writ petitions are allowed as above. (emphasis provided) 4.2. Thus on considering the judicial precedent, we find that there is no legal impediment to the Tribunal to extend stay for a period beyond 365 days in deserving cases. Considering the facts of the present case, we find that after the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lding 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 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 consideration was somewhat similar. It pertained to the waiver of pre-deposit at the stage of an appeal pending before the Central Excise Service 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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. 7.3. Accordingly considering the peculiar facts and circumstances of the case, keeping in view the above principles of law we find that the 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 to move the adjournment it cannot be said to be a case of willful default to appear or unnecessary dragging on or delaying the hearing after having sought stay. Being satisfied with the explanation offered and being of the considered view that the assessee cannot be burdened for no fault of his, the stay is extended for a further period of 6 months or disposal of appeal whichever is earli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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