TMI Blog2017 (1) TMI 881X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Tajinder K. Joshi, Advocate AJAY KUMAR MITTAL, J. (ORAL) 1. The appellant-Revenue has filed this appeal under Section 260A of the Income Tax Act, 1961 against the order dated 18.03.2016 (Annexure A-II) passed by the Income Tax Appellate Tribunal, Delhi Bench, New Delhi (in short, the Tribunal ) whereby the Tribunal, had held that non-disposal of appeal is not attributable to the assessee and, thus, extended the stay for a further period of 180 days or till the disposal of appeal. 2. The appellant-Revenue has claimed the following substantial questions of law in the present appeal:- 1. Whether the Hon'ble ITAT has acted in contravention of the Second Proviso of Section 254(2A) of the Income Tax Act, 1961, as the combi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod 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 originally allowed and the period or periods so extended or allowed shall not, in any case, exceed three hundred and sixtyfive days and the Appellate Tribunal shall dispose of the appeal within the period or periods of stay so extended or allowed: P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere pending and the delay in the disposal of the appeals was not on account of any conduct attributable to the assessee. After considering the relevant statutory provisions and the case law on the point, it was held that the Tribunal has the power to grant extension of stay beyond 365 days in deserving cases. The relevant observations recorded read thus:- 23.Keeping in mind the principles set out by the Supreme Court in Dr Subramanian Swamy (supra), [(2014) 8 SCC 682 (SC)] we need to examine whether the present challenge to the validity of the third proviso to Section 254(2A) can be sustained. This is not a case of excessive delegation of powers and, therefore, we need not bother about the second dimension of Article 14 in its appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition on the power of the Tribunal to the grant an order of stay, it can, by no stretch of imagination, be argued that where the assessee is not responsible for the delay in the disposal of the appeal, yet the Tribunal has no power to extend the stay beyond the period of 365 days. The intention of the legislature, which has been made explicit by insertion of the words even if the delay in disposing of the appeal is not attributable to the assessee renders the right of appeal granted to the assessee by the statute to be illusory for no fault on the part of the assessee. The stay, which was available to him prior to the 365 days having passed, is snatched away simply because the Tribunal has, for whatever reason, not attributable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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), [(2007) 295 ITR 22 (Bom.)] 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. 16. The Apex Court in Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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