TMI Blog2021 (2) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... they are not commenting upon the merits of the matter involved in the main appeal We are at a loss to understand as to how the Tribunal exercised its power in issuing a suo motu Corrigendum, that too by an undated order without hearing the Revenue or the Assessing Officer. As mentioned above, the appeal was not taken up for hearing on 13.01.2020 and obviously, the protection granted by the Tribunal in its interim order dated 20.12.2019 enured in favour of the assessee and the Revenue is right in its argument that the order of stay was in force beyond the period provided in the proviso to Section 254(2A) of the Act Tribunal, while issuing directions to the Departmental representative, not to exercise its jurisdiction against the assessee, should be traceable to the statutory provisions. We find that no such power has been conferred on the Tribunal under Section 254 of the Act. Tribunal has no such power to issue directions, but has got power to grant an interim order under Section 254, subject to the conditions stipulated therein. Therefore, we are compelled to answer the substantial questions of law in favour of the Revenue and against the assessee. - Tax Case Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand of ₹ 46,30,29,450/-. 4. The Assessing Officer made disallowance under three heads, namely, (1) Excess claim of wastage on old gold - ₹ 20,00,00,000/-. (2) Disallowance u/s 2(22)(e) of the Act - ₹ 76,19,00,000/-. (3) Disallowance of capital gains exemption - ₹ 16,24,68,072/-. 5. A sum of ₹ 20 crores was added as undisclosed income of the assessee since the assessee had surrendered the same during the course of search under Section 132(4) of the Act. Further, during the search operation, it came to light that there was no evidence that was produced by the assessee with regard to the amount claimed for wastages on melting and purification of old gold purchased. Furthermore, payments were also made in cash of less than ₹ 20,000/- by splitting the bills. A sum of ₹ 76.19 crores was added as deemed dividend under Section 2(22)(e) of the Act, being the cumulative credit balance in the books of the group companies, in the hands of the assessee, for the reason that the assessee had indirectly borrowed funds from the company through the books of other group companies, which according to the department were only paper concerns. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was satisfied in directing the Revenue not to initiate coercive action against the assessee for recovery of outstanding demand. The power to be exercised by the Tribunal should be in accordance with Section 254(2A) read with the proviso thereunder. We find the order to be devoid of reasons though the order is a four page order, substantial part of the order is only the submissions made by the assessee, which are touching upon the merits of the matter and while holding that the order is devoid of reasons, we find that the Tribunal was justified in observing that they are not commenting upon the merits of the matter involved in the main appeal. Further, we note that the Tribunal finally disposed of the stay petition by order dated 20.12.2019, after noting that the appeal is fixed for hearing before the Regular Bench on 13.01.2020. 10. Under normal circumstances, if the appeal is to be heard by a different Bench than the Bench which is hearing the stay petition and the case is set out for hearing on a particular date, Courts normally do not dispose of the interlocutory applications, but would direct the application to be called on the date when the appeal is heard. However, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in SP.No.50/Chny/2019. The said stay application was dismissed by order dated 14.02.2020, fixing the appeal for hearing on 25.02.2020. It was made clear that the assessee should not seek adjournment on the date of hearing and in case the Revenue seeks adjournment, the entire amount will be stayed automatically. On the date fixed for hearing, the matter was not heard by the Tribunal. From the order sheet dated 25.02.2020, it is seen that when the appeal was taken up, the assessee's counsel sought for a Passover and the matter was subsequently taken up at 12.15 PM and the learned counsel for the assessee submitted that he would take 2 hours to complete his arguments. The Tribunal has recorded that, since the matter could not be completed due to paucity of time, the case is adjourned to 17.03.2020 with consent of both the parties. The learned counsel for the assessee pleaded that the interim protection for recovery proceedings for the demand may be granted to the assessee. Accordingly, the Tribunal directed the Departmental representative to suitably inform the Assessing Officer, having jurisdiction over the assessee's case, not to initiate coercive measure for the reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have elaborately set out the manner in which the Tribunal proceeded with the matter. It is no doubt ture that the assessee cannot be blamed for the non-functioning of the Tribunal, which is also beyond the control of the Tribunal due to pandemic situation. But however, we are on a larger issue with regard to the power of the Tribunal to be exercised while granting interim orders. We find that the exercise of power by the Tribunal is not to be in accordance with Section 254(2A) of the Act. Further, we have also commented upon the direction issued by the Tribunal to the Department through its Departmental representative not to initiate coercive action. 16. In our opinion, the Tribunal has no such power to issue directions, but has got power to grant an interim order under Section 254, subject to the conditions stipulated therein. Therefore, we are compelled to answer the substantial questions of law in favour of the Revenue and against the assessee. However, we do not wish to interfere with the impugned order which had been passed by the Tribunal, though we are deciding the substantial questions of law in favour of the Revenue on account of the fact that the Tribunal has alread ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
