TMI Blog2013 (4) TMI 899X X X X Extracts X X X X X X X X Extracts X X X X ..... city and ambiguity of information on why and under what circumstances this application has been moved, it would be true and fair that the essential facts are first set out in a form it can be properly and readily appreciated. 2. In the case of the assessee, order was passed in the stay petition No- 273/Del/2012 in ITA No.-5797/Del/2013 which was disposed in the following manner :- 4. In consideration of the application of the assessee in the light of rival submissions and material on record, we grant of stay recovery, subject to condition that assessee shall deposit ₹ 2.50 crores on or before 21-12-2012 and shall furnish bank guarantee in the amount involved for which MAP application has been filed, on or before 31-12-2012, for a period of 180 days or disposal of the appeal/MAP application, whichever is earlier. However, assessee shall not seek any adjournment and get finalized the appeal fixed for hearing on 13-01-2013 or any subsequent date. In case assessee seeks adjournment or commit default in making payment or furnish bank guarantee within the stipulated time, the accommodation herein granted shall stand automatically cancelled and entire outstanding demand would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e event the assessee seeks adjournment , the stay will be automatically cancelled and the efforts of the department showed that on 16-01-2013 adjournment was prompted by the assessee. 3.5 Time was given to the parties on the said to arrive at a mutually acceptable solution since bona fide belief was pleaded by the Revenue. However it did not yield any result. The petition 273/Del/2013 was declared non-maintainable. 3.6 In the above-mentioned background the appeal which was listed for hearing on 16-04-2013 came to be listed for hearing before the Bench on 08-04-2013 as the assessee moved a petition dated 02-04-2013 before the Hon'ble Vice President, ITAT, Delhi Benches requesting for pre-ponement of the appeal so that the assessee may be able to address the petition for refund of the outstanding demand collected in violation of the stay order. 3.6.1 The Hon'ble Vice President, Delhi Benches passes the following administrative order:- Hearing of appeal is preponed to 08-04-2013. This letter of 'a' would also be placed before the Bench on 08-04-2013. Sd/ (G.D. Agarwal) 03-04-2013 4. Accordingly the appeal stood preponed and duly listed in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficers wherein loss has been caused to the Government on account of non-action on the part of the Field Officers. 7.1 These laudable arguments and pleas seeking to perhaps ignite the spirit of patriotism we humbly observe cannot be taken judicial notice for deciding the issue in the present proceedings. 7.2 Similarly, the arguments and pleas that an officer exercising its powers is presumed to have always acted in a bona fide manner is a presumption available to the officers in the discharge of their official duties however this is a rebuttable presumption which an officer in facts and circumstances if so warranted can be asked to explain. 7.3 However what has left a heavy impact on our judicial minds is the prevalent ground reality wherein it seems to appear that the officers are working under extremely trying circumstances and pressures where the decisive factor for decision making may not necessarily only be the facts and circumstances of the case vis- -vis the position of law but the apprehensions and fears of being found to be derelict in the discharge of their duties where comments, observations, criticisms and may be strictures from the CAG/Audit would have a serio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in violation of the stay order. However mention of the same is made as in our opinion it may call for some contemplation on the administrative side of the department. 10. Addressing the issue before us in the present proceedings, we propose to consider them in the following manner:- (a) Has the stay order of the Tribunal been flouted by the assessee; (b) Has the stay order of the Tribunal been flouted by the department; (c) if the answer to b) is yes then is the action of the department bona fide or mala fide on facts; (d) if the answer to b) is yes then does the Tribunal have the power to direct a refund; (e) in case the answer to d) is yes, then what are the safeguards which can be ensured to protect the interests of the Revenue. 11. Addressing the issues posed in a) we have taken into consideration the order of the Tribunal dated 13-12-2012. On a perusal of the same, it is seen that in the light of the rival submissions and material on record, the Co-ordinate Bench granted stay of recovery subject to the conditions (i) that the assessee shall deposit ₹ 2.50 crores; and ii) shall furnish bank guarantee of the amount involved for which MAP application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne mandates that when the Bench is having knowledge of the fact that the specific issue is not being proceeded with by different Benches of the ITAT and are awaiting the order of the Special Bench constituted of three Members, it is appropriate for the Division Bench to await the order. As such this could not have been considered that adjournment was sought by the assessee. 11.4 Accordingly we hold that since no adjournment was sought by the assessee, the order dated 13-12-2012 of the ITAT passed in the stay petition has not been flouted by the assessee. 12. Coming to the next question which we have posed to ourselves in b) and c) namely to consider whether the stay order was flouted by the department and if yes, was the action bona fide or mala fide on facts. 12.1 Giving our due consideration to the arguments advanced on behalf of the assessee as well as by the CIT DR, we are of the view that the stay order passed by the Tribunal was flouted by the Department. 12.2 Having come to the said conclusion on examination and considering the arguments advanced we are of the view that the action was bona-fide. We have come to the said conclusion after considering the submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue. Considering Section 254 of the Income-tax Act, it is seen that under sub-section (1) of the same, the Tribunal is empowered after hearing the parties to pass such orders thereon as it thinks fit. Thereon refers to subject matter of appeal pending before the Tribunal and has been expanded to include pass any orders in rendering justice thereon . It has been variously addressed by the Courts and Tribunals that the Tribunal has the power to remedy any wrong committed in proceedings before it. We may refer to the celebrated judgment of the Apex Court in the case of M.K. Mohammed Kunhi (supra) which has held that section 254 of the Income-tax Act, 1961 confers on the Appellate Tribunal powers of the widest amplitude in dealing with appeals before it which thus grants by implication the power of granting stay of recovery of the disputed tax. At the relevant point of time the power to grant stay was not available to the Tribunal on the Statute. The position being different now however the power to grant stay of recovery of the disputed demand can be exercised only when an appeal is filed by the assessee against the decision of the First Appellate Authority. Coming to the powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ps quote from Domat's Civil Law as under : It is the duty of the judges to apply the laws, not only to what appears to be regulated by their express dispositions, but to all the cases where a just application of them may be made and which appears to be comprehended either within the consequences that may be gathered from it. 13.7 Similarly Maxwell on Interpretation quoted by their Lordships may also be referred to where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts or employing such means, as are essentially necessary to its execution 13.8 Accordingly, on a consideration of facts circumstances and position of law we are of the view that ex debito justitiae mandates that we set right the wrong done. We refer to another well recognized legal principle namely doctrine of legitimate expectation which operates in assessee's favour, as having fulfilled and duly complied with the directions contained in the stay order the legitimate expectation of the person is that he/it shall not be subjected to any act detrimental to it during the existence of stay and it is this expectation which has not been fulfilled in the present fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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