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2018 (4) TMI 632

oceedings initiated - Held that:- On each and every date of hearing, fresh orders for maintaining status quo were passed. In view of this, since the period of operation of the orders has already passed/ has become a past, we will be astonished to know how the vacation of the stay order dated 15.2.2017 and 28.4.2017 the period of operation of which was upto 4.5.2017 and 22.5.2017 respectively, at this stage, will in any manner of any help to the department. The vacation of order dated 15.2.2017 or of 28.4.2017 at this stage will not absolve the concerned officer/s of their act of violation of order during the subsistence of the order. We have not come across with any case law laying down the proposition that interim stay orders can be vacated with retrospective effect. - Even the orders dated 15.2.2017 and 28.4.2017 have not been continued as such rather the subsequent stay orders were passed in view of subsequent developments / change of circumstances such as recovery of the amount by the Department in violation of stay order dated 15.2.2017 and thereafter order of the Tribunal directing for refund of the amount dated 28.4.2017 and thereafter the status quo order after the sta .....

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an application for stay of demand before the ITAT (This Tribunal). That thereafter this Tribunal vide its order dated 15.02.2017 passed the following order: "The main appeal is adjourned to 05.04.2017 for filing of certain documents by the assessee. The stay application is also adjourned to 05.04.2017. In the meantime, demand will remain stayed till next date of hearing." 2. It has been further stated that in the absence of any documentar y evidence like the Stay order dated 15.2.2017 passed by the Bench, the bank account of the assessee was attached on 17.2.2017 and the outstanding demand of ₹ 29,08,230/- was recovered. That thereafter the Tribunal passed order dated 28.4.2017 in the M.A. moved by the assessee agitating the said recovery, whereby it not only directed the Assessing officer to remain present on the next date of hearing and furnish the written submissionsbut also directed the revenue not to recover any amount out of the impugned demand. That the orders of this Tribunal dated 15.2.2017 and 28.4.2017 granting exparte stay against the recovery of the demand are totally non-reasoned orders passed by this Tribunal, contrary to the well settled law and the .....

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constituted of Sh. Bhuvnesh Saini, Judicial Member (since transferred to Delhi) and Smt Annapurna Gupta, Ld. Accountant Member. Now, at this stage, it is pertinent to mention here that the appeal as well as the Application for Stay of demand came for the first time for hearing before the Tribunal on 15.2.2017. The counsel for the assessee sought to produce more documents in support of his claim. In the meantime, he also requested for the stay of the recover y of demand. The Tribunal vide order dated 15.2.2017 adjourned the main appeal as well as the Stay application to 5.4.2017 and in the meantime it was also ordered that the demand will remain stayed till the next date of hearing. 7. Neither the Stay application nor the main appeal were disposed of by the Tribunal on the said date 15.2.2017. The recovery of demand was stayed as an interim measure. In the meantime, the Assessing officer i.e. ITO (E) despite the knowledge of the Stay Order, in defiance of the interim order dated 15.2.2017, illegally recovered the tax demand from the bank account of the assessee, for which the assessee filed a separate Misc. Application. It is further pertinent to mention here that on the next date o .....

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spite the recover y of demand specifically stayed by this Tribunal. The case was again adjourned at the request of the Departmental representative as he was not available due to his official duty elsewhere. The Tribunal further directed to maintain the status quo till the next date of hearing. The case was thereafter adjourned to 7.7.2017. 9. Again on 7.7.2017, an adjournment was sought by the then concerned CIT-DR, present in the court, namely Shri Sushil Kumar stating that the concerned CIT- DR, Shri Ravi Sarangal who was conversant with the facts of the case was on leave. In view of this, since the case was adjourned to 4.7.2017. The parties were directed to maintain the status quo. On 4.7.2017, surprisingly again, adjournment was sought by the Department stating that concerned DR was busy in another Court. The case was accordingly adjourned on the oral request of the Department to 19.9.2017. The parties were directed to maintain status quo. 10. Thereafter on 19.9.2017, the Bench did not function. As per the order of the Incharge Senior Member, the case was adjourned to 21.9.2017. 11. On 21.9.2017, the Ld. Sr. DR filed written submissions on behalf of the Assessing officer which .....

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by the Ld. Assessing officer for vacation of orders dated 28.4.2017 and 15.2.2017, it has been mentioned that the Assessing officer herself in this case had passed a very well- reasoned order while disallowing the claim of the assessee of exemption u/s 11 of the income Tax Act. Further, it has also been pleaded that the Ld. CIT(A) has also passed a very detailed and well-reasoned order discussing the appeal of the assessee and upheld the order of the Assessing officer. However, the Tribunal while staying the recovery of the demand has passed an ex-parte order which is a totally non-reasoned order and is contrary to the well settled law and the same is liable to be vacated. The Assessing officer has tried to justif y her act of violation of the interim order of this Tribunal stating that in the absence of any documentary evidence like the Stay order dated 15.2.2017 passed by the Bench, the bank accounts of the assessee was attached on 17.2.2017 and the outstanding demand of ₹ 29,08,230/- was recovered. However, no averments have been made as to the reasons or justification necessitating for the vacation of the interim stay granted vide order dated 15.2.2017, which otherwise ha .....

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ded to the assessee and also in view of the reluctanceof the concerned DRs in arguing the matter and seeking adjournments. 16. There is another interesting fact coming out of the record. The assessing officer in her application for condonation of delay with covering letter dated 20.2.2018 has referred to various dates of hearings stating that she was waiting for the disposal of the Misc. Application filed by the assessee against violation of the order dated 15.2.2017. This shows that the concerned ITO (E) was aware of the subsequent orders of stay/status quo, then why the application for vacation of two orders only has been filed is not understandable. 17. The crux of our above discussion is that the department officials fully knowing that no useful purpose will be served either by moving the present application and even knowing that the present application was infructuous and non-maintainableeven on the date of its filing, not onl y filed this application, but also insisted for arguments despite that the hearing on the main appeal had already been concluded on a previous date. The only motive behind this application is to confront and show resentment and displeasure to this Tribun .....

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