Income Tax Appellate Tribunal - Mumbai
Jaipur Ipl Cricket P.Ltd(Royal ... vs Asst Cit Cen Cir 13, Mumbai on 15 March, 2019
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCH "J", MUMBAI
BEFORE SHRI G.S. PANNU, VICE PRESIDENT AND
SHRI MAHAVIR SINGH, JUDICIAL MEMBER
SA NOS. 127 & 128/MUM/2019 : (A.Ys : 2010-11 & 2011-12)
(in ITA Nos. 1114 & 1113/Mum/2016)
Royal Multisport Private Limited Vs. ACIT, Central Circle-13,
(Formerly known as Jaipur IPL Cricket Mumbai. (Respondent)
Pvt. Ltd.), Fulcrum, B Wing,
103-104, Hiranandani Business Park,
Sahar Airport Road, Andheri (E),
Mumbai 400 099.
PAN : AABCJ9648P (Applicant)
Applicant by : Shri Jishaan Jain
Respondent by : Shri Rajeev Gubgotra
Date of Hearing : 15/03/2019
Date of Pronouncement : 15/03/2019
ORDER
PER G.S. PANNU, VICE PRESIDENT :
The captioned applications have been moved by the assessee seeking extension of stay on the recovery of demand earlier granted by the Tribunal vide its order dated 27.04.2018 in SA Nos. 275 & 276/Mum/2018.
2. It is the say of the applicant that it has paid almost 87% of the total disputed demand and the delay in disposal of the appeals is not attributable to the assessee.
2 SA Nos. 127 & 128/Mum/2019Royal Multisport Pvt. Ltd.
3. The aforesaid factual assertion of the assessee has not been rebutted by the ld. DR and the same is also emerging from the record. Considering the entirety of circumstances, stay on the recovery of outstanding demand is continued for a further period of 6 months or till the order of the Tribunal, whichever is earlier.
4. Before parting, we may also address an argument set-up by the ld. DR that the impugned extension of stay, which is beyond the initial period of 6 months, is also not justified keeping in mind the judgment of the Hon'ble Supreme Court in the case of Asian Resurfacing of Road Agency P. Ltd. and Ors. vs Central Bureau of Investigation, Criminal Appeal Nos. 1375 & 1376 of 2013 dated 28.03.2018.
5. We have carefully considered the aforesaid plea and find that the reliance of the ld. DR on the judgment of the Hon'ble Supreme Court in the case of Asian Resurfacing of Road Agency P. Ltd. and Ors. (supra) is quite misplaced insofar as the impugned proceedings are concerned. Ostensibly, the third proviso to Sec. 254(2A) of the Income Tax Act, 1961 (in short 'the Act') was inserted by the Finance Act, 2008, which prescribe that if the appeal is not disposed of during the period of stay allowed as per the first proviso or second proviso to Sec. 254(2A) of the Act, namely, for period totalling to 365 days, the order of stay shall stand vacated even if the delay in disposing of the appeal is not attributable to the assessee. By referring to the judgment of Hon'ble Supreme Court in the case of Asian Resurfacing of Road Agency P. Ltd. and Ors. (supra) as well as the third proviso to Sec. 254(2A) of the Act, the case set-up by the Revenue is that the Tribunal is not competent to extend the period of stay in the impugned case. In this 3 SA Nos. 127 & 128/Mum/2019 Royal Multisport Pvt. Ltd.
context, we may gainfully refer to the judgment of Hon'ble Delhi High Court in the case of Pepsi Foods (P) Ltd. vs ACIT, 376 ITR 87 (Del) whereby the expression "even if the delay in disposing of the appeal is not attributable to the assessee" in third proviso to Sec. 254(2A) of the Act has been struck down for the reason that the same violates the non-discrimination clause of Article 14 of the Constitution of India. The Hon'ble Delhi High Court, after striking down the aforesaid expression, specifically noted that the position of law will revert back to the interpretation placed on Sec. 254(2A) of the Act by the Hon'ble Bombay High Court in the case of Narang Overseas Private Limited vs ITAT, (2007) 295 ITR 22 (Bom). As a consequence, the Hon'ble Delhi High Court went on to hold that where the delay in disposing of the appeal was not attributable to the assessee, the Tribunal was competent to grant extension of stay even beyond the period of 365 days in deserving cases. Notably, the Hon'ble Bombay High Court in the case of CIT vs Tata Teleservices (Maharashtra) Ltd., (2016) 286 CTR 336 (Bom.) affirmatively considered the judgment of the Hon'ble Delhi High Court in the case of Pepsi Foods (P) Ltd. (supra). The Hon'ble Bombay High Court took note of the fact that the third proviso to Sec. 254(2A) of the Act was struck down by the Hon'ble Delhi High Court in the case of Pepsi Foods (P) Ltd. (supra). The Hon'ble High Court also noted its earlier decision in the case of Narang Overseas Private Limited (supra) and in this manner, the legal position which emerges before us is that the stay can be extended even beyond the period of 365 days in deserving cases where the delay in disposal of the appeal is not attributable to the assessee.
6. Insofar as the reliance placed by the ld. DR on the judgment of the Hon'ble Supreme Court in the case of Asian Resurfacing of Road Agency P. 4 SA Nos. 127 & 128/Mum/2019 Royal Multisport Pvt. Ltd.
Ltd. and Ors. (supra) is concerned, the same was the subject matter of consideration by the Hon'ble High Court in a recent judgment in the case of Oracle Financial Services Pvt. Ltd. vs DCIT, Writ Petition no. 542 of 2019 dated 28.02.2019. Apart from other aspects, the Hon'ble High Court has explained that the observations made by the Hon'ble Supreme Court in the case of Asian Resurfacing of Road Agency P. Ltd. and Ors. (supra) in the context of civil and criminal litigation cannot be imported in the present set of quasi-judicial proceedings which involve grant of stay on recovery of outstanding demand under the Income Tax Act, 1961. We are tempted to reproduce hereinafter para 4 of the judgment of the Hon'ble Bombay High Court in the case of Oracle Financial Services Pvt. Ltd. (supra), which reads as under :-
"4. We are prima facie of the view that the Revenue Authorities committed serious error. Against the total demand arising out of the order of assessment of Rs. 205 crore, the Assessing Officer has already recovered a total of Rs. 140 crores by now through different means. There is no allegation that the petitioner is responsible for delay in disposal of the appeal before the 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."5 SA Nos. 127 & 128/Mum/2019
Royal Multisport Pvt. Ltd.
7. In view of the aforesaid, we do not find that the points raised by the ld. DR are an impediment so far as the present case is concerned for grant of extension of stay. Notably, in the earlier paras, we have already observed that almost 87% of the total disputed demand has already been deposited and the delay in disposal of the appeals pending before the Tribunal is not for reasons attributable to the assessee. Thus, on facts, the instant case is a deserving case where the exercise of power to grant extension of stay beyond 365 days by the Tribunal is justified. We hold so.
8. In the result, the stay applications are allowed, as above.
The above decision was pronounced in the open court in the presence of both the parties at the conclusion of the hearing on 15th March, 2019.
Sd/- Sd/-
(MAHAVIR SINGH) (G.S. PANNU)
JUDICIAL MEMBER VICE PRESIDENT
Mumbai, Date : 15th March, 2019
*SSL*
Copy to :
1) The Appellant
2) The Respondent
3) The CIT(A) concerned
4) The CIT concerned
5) The D.R, "J" Bench, Mumbai
6) Guard file
By Order
Dy./Asstt. Registrar
I.T.A.T, Mumbai