TMI Blog2019 (5) TMI 1931X X X X Extracts X X X X X X X X Extracts X X X X ..... the stay - As decided in M/S. PIRAMAL ENTERPRISE LTD. [ 2019 (3) TMI 1319 - ITAT MUMBAI] the Legislature was conscious of the fact that there are circumstances where stay has to be granted beyond six months as the facts requires in the exceptional cases. We have gone through the said order and noticed that no such plea was placed before the Tribunal at the time of hearing or from record we could not trace such arguments or plea. Hence taking into consideration all the facts and circumstances, we are of the view that the Hon'ble High Court has struck down the expression, even if the delay in disposing of the appeal is not attributable to the assessee as substituted by 3rd proviso to Section 254(2A) of the Act and taken a view that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of recovery of outstanding demand be vacated forthwith for the reasons that while granting stay in S.A. No. 493/Mum/2018 dated 14.12.2018 in ITA No. 1115/Mum/2015, the demand is stayed for more than 365 days. The first stay was granted by Tribunal on 28.04.2017, which was extended from time to time. 4. It is further stated that as per third proviso to section 254(2A) the stay beyond 365 days will stand vacated after expiry of the said period and that the department may be permitted to proceed with recovery action for outstanding demand. In the prayer clause, the applicant prayed for out of turn hearing of the application (appeal). 5. The learned Sr. D.R. for revenue stated that a total outstanding/balance tax demand in this case for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue has filed the present application on 07.03.2019 without verifying the fact. Therefore, the Miscellaneous Application No. 173/Mum/2019 is not maintainable and may be treated as infructuous. For Miscellaneous Application No. 174/Mum/2019, the ld. AR submits that the stay for Assessment Year 2010-11 was further extended for six month or till the disposal of appeal whichever is earlier, on 29.03.2019 vide S.A No. 147/Mum/2019. Thus, this Miscellaneous Application is also not maintainable. 7. The ld. AR of the assessee submits that the case law relied by applicant/ revenue is not applicable as on similar applications filed by revenue, the co-ordinate bench of Mumbai Tribunal in M.A. No. 143/Mum/2019 dated 15.03.2019 has distinguished th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tributed to the assessee. In terms of this the stay was extended for further 180 days from date of order, i.e. 04.12.2018 and the appeal for A.Y. 2011-12 was fixed for hearing on 31.01.2019. This appeal was adjourned to 03.04.2019 due to paucity of time as the appeal for A.Y. 2009-10 was head on that very day and the order is reserved and awaited as informed by the learned counsel for the assessee. We have gone through the decision of the Hon'ble Delhi High Court in the case Pepsi Food (P) Ltd. (supra) and conscious of the fact that the Hon'ble Delhi High Court has struck down the addition of expression by virtue of Finance Act, 2008 by holding the same as violative of non-discriminatory clause of Article 14 of the Constitution of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reappreciate 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 unduly long period. Though no mandatory time limit may be fixed, the decision may not exceed two-three months normally. If it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in this provision of Section 254(2A) introduced third proviso vide Finance Act, 2008 and allowed the period for granting of stay not exceeding 365 days in normal circumstances. Hence the Legislature was conscious of the fact that there are circumstances where stay has to be granted beyond six months as the facts requires in the exceptional cases. We have gone through the said order and noticed that no such plea was placed before the Tribunal at the time of hearing or from record we could not trace such arguments or plea. Hence taking into consideration all the facts and circumstances, we are of the view that the Hon'ble High Court has struck down the expression, even if the delay in disposing of the appeal is not attributable to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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