Income Tax Appellate Tribunal - Mumbai
Deloitte Consulting India P.Ltd, vs Assessee on 17 April, 2015
IN THE INCOME TAX APPELLATE TRIBUNAL
"K" Bench, Mumbai
Before Shri D. Manmohan, Vice President
and Shri R.C. Sharma, Accountant Member
SA No. 146/Mum/2015
(Arising out of ITA No. 157/Mum/2012)
(Assessment Year: 2007-08)
M/s. Deloitte Consulting India Income Tax Officer 2(2)(3)
Pvt. Ltd. (formerly Mastek DC Offshore Mumbai
Development Company Pvt. Ltd.)
201-206, Fairmont, Hiranandani Vs.
Business Park, Powai
Mumbai 400078
PAN - AACCM6469N
Applicant Respondent
Applicant by: Shri Madhur Agarwal
Respondent by: Shri Premanand J.
Date of Hearing: 17.04.2015
Date of Pronouncement: 17.04.2015
ORDER
Per D. Manmohan, V.P. By this application the assessee seeks stay of collection of outstanding demand of `63,85,261/- pending disposal of the appeal.
2. It deserves to be noticed that the appeal was filed before the ITAT on 6th January, 2012 and pending disposal of the appeal a petition was filed by the assessee on 10.01.2012 seeking stay of collection of outstanding demand and the same was numbered as SA No. 42/Mum/2012. The Bench noticed that no evidence was produced to show that any coercive action was taken by the Department to recover the demand from the assessee and therefore refused to grant stay and directed the Registry to post the appeal for hearing on 01.02.2012. Again, on 23.01.2012 the assessee filed another stay application, which is numbered as 64 of 2012. Surprisingly, in this stay application the fate of the earlier order passed by the ITAT was not even referred to and the Bench, vide its order dated 27.01.2012 , thought it is a fit case for granting stay of collection of outstanding demand for a period of six months pending 2 SA No. 146/Mum/2015 M/s. Deloitte Consulting India Pvt. Ltd.
disposal of the appeal by the Tribunal. Thereafter the case was getting adjourned from time to time and the assessee went on seeking extensions unendingly and the Benches have been granting extensions. The latest order in the row of stay applications was passed in SA No. 65/Mum/2014 wherein, vide order dated 07.03.2014, the Bench noticed that similar issue was decided against the assessee by the Tribunal in assessee's own case for A.Y. 2006-07 but took note of the contention of the assessee that the Hon'ble jurisdictional High Court judgment in the case of CIT vs. Gen Plus Jewellery India Ltd. was not considered and therefore the balance of convenience goes in favour of the assessee. However, having taken note of the fact that several extensions were granted the Bench extended the stay for a further period of six months only. It was also mentioned that the assessee should not seek adjournment, except under extreme bonafide circumstances. Eventhough the case was listed for hearing from time to time, according to assessee's counsel, the case was not taken up for hearing for no fault of the assessee and in fact the case was adjourned on the ground that the matter is pending before the High Court. We, however, noticed that several letters were addressed by the assessee to the Tribunal dated 29.08.2013 onwards wherein it was stated that identical issue was pending before the High Court and it was fixed for hearing on 20th August, 2013 and so on and requested for fresh stay. Accordingly the case was adjourned. The learned counsel for the assessee submits that a fresh stay may be granted on the same terms.
3. The learned D.R. left it to the discretion of the Bench in the facts and circumstances of the case.
4. We have heard the rival submissions and carefully perused the record. It is not in dispute that the appeal is fixed for hearing on 10.06.2015. It is also not in dispute that the case was adjourned from time to time on applications filed by the assessee. In fact the order sheet entry dated 01.08.2013 reads as under: -
"One of the issues involved in this appeal is pending before the Hon'ble High Court. Ld AR wants time to pursue the appeal pending before the Hon'ble High Court for A.Y. 2006-07, which as direct bearing on the Ground No. 1. In view of the above hearing is adjourned to 29.08.2013. Both parties informed."3 SA No. 146/Mum/2015
M/s. Deloitte Consulting India Pvt. Ltd.
5. It is not in dispute that as the things stand today, in assessee's own case for earlier year, ITAT decided the issue against the assessee and if the order is wrong, in the light of the decision of the Hon'ble High Court, assessee could have filed a miscellaneous application in this case or could have obtained an order from the High Court seeking suspension of such order but merely because the matter is pending before the High Court which may, considering the pendency before the High Court, take even 10 years and it is not possible for the Bench to adjourn the case unendingly by granting stay. When the same was put to the assessee the learned counsel for the assessee submitted that they were prepared to argue the case but the Benches have been consistently granting adjournments.
6. Having regard to the circumstances we are of the view that an ad- interim stay, till 10.06.2015, would meet the ends of justice. It may not be out of context to observe that the Bench, before which it is posted for hearing, should either dispose of the appeal in the light of the decision of the ITAT in assessee's own case for earlier year or refer the matter to Special Bench if they are not in agreement with the view taken therein and as a second alternative it can follow the decision of the High Court, if it is directly on the point, instead of shirking the responsibility of disposal of appeals. We therefore grant ad-interim stay upto 10.06.2015 and if on that date the case is adjourned it is for the Bench to grant further stay, if need be, by giving detailed reasons as to why the Bench is of the opinion that it is a fit case for granting stay so that when the stay application or appeal comes up for hearing before the next Bench it can take the benefit of the reasons to consider the matter judiciously. With these observations the stay application filed by the assessee is considered as partly allowed.
Order pronounced in the open court on 17th April, 2015.
Sd/- Sd/-
(R.C. Sharma) (D. Manmohan)
Accountant Member Vice President
Mumbai, Dated: 17th April, 2015
4 SA No. 146/Mum/2015
M/s. Deloitte Consulting India Pvt. Ltd.
Copy to:
1. The Appellant
2. The Respondent
3. The CIT(A) - 5, Mumbai
4. The CIT- II, Mumbai City
5. The DR, "K" Bench, ITAT, Mumbai
By Order
//True Copy//
Assistant Registrar
ITAT, Mumbai Benches, Mumbai
n.p.