TMI Blog2019 (3) TMI 1319X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal is not attributable to the assessee” as substituted by 3rd proviso to Section 254(2A) of the Act and taken a view that the Tribunal has power to extend stay even beyond 365 days and even after the substitution of 3rd proviso to Section 254(2A) of the Act. Hence, respectfully following the above referred decisions, discussing legal positions, we dismiss this miscellaneous application of the Revenue. - MA No. 143/Mum/2019 (Arising out of SA No. 453/Mum/2018) (Assessment Year: 2011-12) - - - Dated:- 15-3-2019 - Shri Mahavir Singh and Shri N.K. Pradhan, JJ. Applicant by: Shri Rajeev Gubgotra Respondent by: Shri Roank Doshi ORDER Mahavir Singh, By way of this Miscellaneous Application filed by the Revenue under Section 254(2A) of Income Tax Act, 1961 (hereinafter the Act ) requesting for recall of the stay order passed by the Tribunal in Stay Application No. 453/Mum/2018 dated 04.12.2018. 2. The learned Sr. D.R., Shri Rajeev Gubgotra stated the fact that the total demand involved in this case for A.Y. 2011-12 is `125.,42 crores and this demand has been stayed by the Tribunal six times and beyond 2 years, finally granting 6th extension on 04. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equested for vacation of the stay in this case. 3. On the other hand, the learned counsel for the assessee, Mr. Ronak Doshi, first of all referred to the 3rd proviso to section 254(2A) of the Act which reads as under: - (2A) In every appeal, the Appellate Tribunal, where it is possible, may hear and decide such appeal within a period of four years from the end of the financial year in which such appeal is filed under sub-section (1) or sub-section (2) of section 253 : Provided that the Appellate Tribunal may, after considering the merits of the application made by the assessee, pass an order of stay in any proceedings relating to an appeal filed under sub-section (1) of section 253, for a period not exceeding one hundred and eighty days from the date of such order and the Appellate Tribunal shall dispose of the appeal within the said period 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 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contrary, the clubbing together of 'well behaved' assesses and those who cause delay in the 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), 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. He further referred to the decision of the Hon'ble Bombay High Court in the case of CIT vs. Tata Teleservices (Maharashtra) Ltd. (2016) 286 CTR 336 (Bom) wherein referring to the decision of the Hon'ble Bombay High Court in the case of Pepsi Foods (P) Ltd. (supra) has considered this aspect and noted that the Hon'ble Delhi High Court has struck down the relevant addition as substituted by the 3rd prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner. Merely relying upon the decision of the Supreme Court in the case of Asian Resurfacing of Road Agency Pvt Ltd (supra), Revenue Authorities now held a belief that any stay against the recovery granted would automatically lapse after six months. This is neither the purport of the judgment of the Supreme Court, nor the observations made in the said judgment in the context of civil and criminal litigation can be imported in present set of quasi judicial proceedings. The power of the Assessing Officer to review the situation every six months, would not authorized him to lift the stay previously granted after full consideration and insist on full payment of tax without the assessee being responsible for delay in disposal of the appeal or any other such similar material change in circumstances. The learned counsel for the assessee also argued that there is no mistake apparent from record in the order of the Tribunal extending stay even though fifth time for the reason that the Revenue has not taken up or never argued or pressed this issue at the time of extension of the stay by the Tribunal and hence mistake apparent from record cannot be attributable at this stage. For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. (supra) we noted that the context of the issue before the Hon'ble Supreme Court was criminal jurisdiction regarding the Prevention of Corruption Act and the cases pending at trial stage and the proceedings stayed by the Hon'ble High Court. This issue has been dealt with by the Hon'ble Supreme Court in the case of Asian Resurfacing of Road Agency P. Ltd. vide paras 36 37 as under: - 36. Thus, we declare the law to be that order framing charge is not purely an interlocutory order nor a final order. Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 Cr.P.C. or Article 227 of the Constitution. However, the said jurisdiction is to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered. Thus considered, the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to re-appreciate the matter. Even where such challenge is entertained and stay is granted, the matter must be decided on day-to-day basis so that stay does not operate for an undu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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