TMI Blog2016 (3) TMI 1302X X X X Extracts X X X X X X X X Extracts X X X X ..... tly and substantially from the impugned order before the ITAT and the proceedings sought to be stayed relate to the present appeal filed under sub-section (1) of Section 253. During the course of hearing the Stay Petition which stood reinforced on hearing of the Appeal, we found that the assessee had a prima-facie case for grant of stay as prayed for and an order of status-quo was pronounced on the Bench As the assessee has made out a prima-facie case for grant of stay, the departmental objection that the ITAT does not have the power to grant stay is misplaced. See case of CIT, Central-II vs ITAT [2012 (8) TMI 166 - DELHI HIGH COURT] - S. A.-198/Del/2016 (In ITA No.-1462/Del/2016) - - - Dated:- 30-3-2016 - Smt. Diva Singh, Judicial Member And Sh. Prashant Maharishi, Accountant Member For the Appellant : Mr. Ajay Vohra, Sr. Adv., Sh. Rohit Jain, Adv. Sh. Deepesh Jain, CA For the Respondent : Mr. Ravi.Jain, CIT DR ORDER Per Diva Singh, JM By the present stay petition filed by the assessee in ITA No.1462/Del/2016 the assessee has made a prayer that since the correctness of the impugned order u/s 263 of the Income Tax Act 1961 dated 27/03/2015 is still to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er sheet entry made out in the Court, Read out to the parties in the Court and thereafter signed in the Court is self explanatory and reproduced hereunder for ready reference:- Order Sheet Dated:29th March 2016 in ITA 1462/DEL/2016 Ld. CIT DR, Mr. Ravi Jain apprises the court that the Revenue would be represented by Mr.A.Manchanda, Adv. who orally sought time. Considering that while arguing the stay petition yesterday. Mr. Rohit Jain had elaborated the issues how Prima-facie the issue is covered in favour of the assessee it was considered appropriate to direct fixation of appeal alongwith the stay for 29th March 2016. Mr. Jain, Adv. had also briefly referred to delay and he was also required to amend the memo of appeal, Stay petition and the affidavit etc. duly signed by the authorised person as pointed out by the Ld. CIT DR. In the said background the parties were directed to argue only Ground No.1.6 of the assessee for which purposes the appeal was passed over twice and Court re-assembled after a gap of about 35 minutes by which time adjournment in writing moved by Ld. CIT DR. Considering the issues after making/ensuring the requisite papers/orders, written submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 263 of the Act by the Tribunal. 6. Since the hearing in the appeal continued till 2.00 PM it was directed that the stay petition should be fixed for hearing at 3:30 PM. The assessee at 3:30 PM represented by Mr. R Jain advocate reiterated the oral undertaking of the Learned Senior Advocate and also filed a written undertaking signed by Mr.A. Sehgal, AVP-Taxation reiterating the position. 7. The Department represented by CIT DR opposed the extension of stay directed on 28 March 2016 stating that the Tribunal does not have the power to stay the consequential proceedings. 8. We have heard the rival submissions and perused the material available on record. In order to adjudicate upon the issues arising in the present stay petition we are required to consider the provisions of section 254 of the Income Tax Act 1961. For ready reference the relevant provision is extracted hereunder :- Section 254 (1) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. (1A) . 2. . Provided, . Provided further . (2A). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to peculiar facts and circumstances in appropriate cases to do justice between the parties. 13.4 We may also refer again to the judgement rendered inM.K.Md Kunhi (cited supra) wherein there Lordships 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 expressed 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 . 13.5. 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. 8.2. This omnibus power conferred upon the Tribunal under Section 254(1) to pass such orders as it thinks fit while deciding an Appeal is reinforced in respect of passing interim orders of stay in the first part of second proviso to sub-section (2A). This ancillary power of the Tribunal to pass an order of stay in any proceedings related to an appeal filed under sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll his appeal which is pending and is to be heard before the Tribunal is finally disposed off, is a legitimate request. To hold otherwise would render the vested right of appeal illusory for no fault of the assessee. 8.5. In the facts of the present case, the appeal of the assessee is pending before the ITAT and has been listed for hearing along with the stay petition and in fact the hearing has also commenced. There is also no doubt that the issues arising in the stay petition flow directly and substantially from the impugned order before the ITAT and the proceedings sought to be stayed relate to the present appeal filed under sub-section (1) of Section 253. During the course of hearing the Stay Petition which stood reinforced on hearing of the Appeal, we found that the assessee had a prima-facie case for grant of stay as prayed for and an order of status-quo was pronounced on the Bench passed since :- 1) the correctness of the impugned order is under challenge and is pending before the ITAT; 2) the hearing has commenced and has not concluded only because the departmental representative seeks time which has been granted; 3) on considering the arguments during the cours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayed the assessment proceedings. This order was upheld by the Hon ble Delhi High Court on the grounds that the assessment proceedings were held to be intrinsically linked to and not severeable from the legality of the order passed under section 263 namely jurisdiction to reopen the assessment. 8.7. On considering the overall facts and circumstances of the present case as briefly enumerated above and the position of law we find that the power to grant stay of any order in any proceedings related to an appeal is vested with the ITAT. 8.8. Hence since the appeal has been heard as far as the assessee is concerned and the Departmental response is awaited, the order of status-quo was pronounced on considering the entirety of the facts and circumstances and the position of law. However in the interests of justice and to protect the interest of the Revenue, we further direct that the assessing officer may pass the consequential assessment order under section 263/143(3) at any time on or before 31st March 2016 but the said assessment order shall not be given effect to till the disposal/adjudication of appeal against order under section 263 of the Act by the Tribunal. Ordered accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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