9911796707
TMI Blog2013 (4) TMI 899X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 Rs. 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 be recoverable as per law." 3. Consequent thereto, the appeal of the assessee came up for hearing on 16-01-2013 (in the order passed in the stay petition the date noted is 13-01-2013). On the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties 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 the cause list of 08-04-2013. 5. Ld. AR reiterated the position qua the collection of outstanding demand in violation of the order of the Tribunal wherein for no fault on the part of the assessee, it was put at a disadvantage despit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicial 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-à-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 seriously damaging effect on their carriers. These are grave concerns and even though not relevant consideration for deciding the issue but move our conscience to request the Competent Authority in the CBDT to make endeavours and create if so fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsider 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 Rs. 2.50 crores; and ii) shall furnish bank guarantee of the amount involved for which MAP application had been filed. Both the conditions were to be fulfilled on or before 31-12-2012. Apart from the said conditions, it is seen that the assessee was further saddled with the condition that it shall not seek any adjournment and get the appeal finalized fixed for heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 submissions advanced by the Field Officers which were reiterated by the Ld. CIT DR that the officers have acted on a bona fide belief that they were required to do so. The Field Officers have been able to show that efforts were made on their part through some Inspector to obtain information in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpanded 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 to direct a refund, reference may be made to the judgement of the Mumbai High Court in Mahindra and Mahindra Ltd. v. Union of India [1992] 59 ELT 505 wherein the customs authority had recovered the disputed demand by encashment of bank guarantee during the pendency of the stay application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 facts of the case. Justice demands that the wrong be set right. 14. Coming to the last question which we have posed to ourselves namely is the interest of the Revenue protected? We have been informed on behalf of the assessee that the bank guarantee furnished by the assessee amounting to Rs. 208 crore odd is i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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