Income Tax Appellate Tribunal - Amritsar
M/S G G Oils & Fats Pvt.Ltd , Bathinda vs Deputy Commissioner Of Income Tax, ... on 27 November, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL
AMRITSAR BENCH, AMRITSAR.
BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER
AND SH. N. K. CHOUDHRY, JUDICIAL MEMBER
SA No. 14/ASR/2018
(Arising out of ITA No.508/ASR/2017)
Assessment Year: 2014-15
M/s. G.G. Oils & Fats Pvt. Ltd., Vs. Deputy Commissioner of Income
Bathinda. Tax, Bathinda.
PAN: AADCG 8857H
(Appellant) (Respondent)
Appellant by : Sh. P.N. Arora (Advocate)
Respondent by: Sh. Alok Kumar (CIT-D.R.)
Date of Hearing: 16.11.2018
Date of Pronouncement: 27.11.2018
ORDER
Per Sanjay Arora, AM:
This is a stay application by the Assesse in respect of its' captioned appeal, preferred before the Tribunal on 31.07.2017, and outstanding for disposal since.
2. The assessee had earlier moved a stay application (SA No. 14/Asr/2017) on 28.09.2017, seeking stay of the outstanding demand, including interest, at Rs.43,11,570/-; the assessee having already paid Rs.7,60,900/- i.e., of the total demand of Rs.50.72 lacs. The same was heard and disposed of the tribunal on 06.10.2017, granting stay subject to payment of 35% of the demand within a period of one week. The same reads as under:
2 SA No.14/Asr/2018G.G. Oils&Fats Pvt. Ltd. v. Dy. CIT 'The stay is granted till the hearing of the case which has been fixed for 29.11.2017 subject to the condition with the assessee will deposit a further amount equivalent to 35% of the demand within a period of one week.' Challan for the requisite amount, i.e., Rs.17.755 lacs, dated 09.10.2017, is on record. The condition for the stay as imposed by the tribunal stands thus complied with. The assessee's appeal being, however, undisposed, even after the expiry of one year thereof, the assessee has moved the instant stay application on 16.10.2018. It is thereby claimed that the assessee has thus paid Rs.25.364 lacs, i.e., 50% of the total demand of Rs.50.72 lacs. And, accordingly, presses for the stay of the balance in view of the tight money market conditions, till the disposal of the appeal, fixed for hearing on 23.01.2019. On the Bench bringing it to the notice of the ld. counsel for the assessee, Sh. P.N. Arora, that the time limit of 365 days, for which the tribunal could ordinarily grant stay; the non-disposal of the appeal being clearly attributable to the assessee, he, while conceding to the delay being attributable to the assesee, would submit that the restriction of one year shall not apply in the instant case as this is a fresh stay application, independent of the former, and neither is it a case of extension of stay granted earlier, and that the assessee is though agreeable to deposit another 10% of the demand, making it at a total of 60%. On the Bench enquiring if the assessee would be interested in preponing the hearing, last adjourned on 10.10.2018 at the assessee's request, Sh.
Arora replied in the negative. The ld. CIT-DR would oppose the stay, further stating that the grant of stay, if at all, should be with the condition of payment of at least another 25%.
3. We have heard the parties, and perused the material on record.
To begin with, the assessee's argument of the limitation provided by section 254(2A) as not relevant as it is a case of fresh stay application, and not an 3 SA No.14/Asr/2018 G.G. Oils&Fats Pvt. Ltd. v. Dy. CIT extension of the stay granted earlier, only needs to be stated to be rejected. Even as observed by the Bench during hearing, the question is of the power of the tribunal to grant stay, which is implicit in its' power to entertain, hear and adjudicate appeals preferred before it. By making an application in its respect, the assessee merely seeks the consideration of the tribunal for granting its stay (of the outstanding demand) qua an appeal pending disposal before the tribunal by making out a case for the same. That is, the power of stay is qua an appeal, ancillary to its' power u/s. 254(1) for passing, after hearing the parties to the appeal, such orders as it may deem fit, i.e., in the nature of interim order/relief. The first thing that therefore needs to be examined and decided is if the tribunal could, in the given facts and circumstances of the case, grant further stay. The conditions therefor, viz. the period of the stay or the payment required to be made, etc. could follow only in the exercise of that power of stay. Sub-section (2A) of section 254, titled 'Orders of Appellate Tribunal', regulating the passing of the orders by the tribunal, including grant of stay and extension thereof by it, reads as under: sec. 254(2A) paste here Orders of Appellate Tribunal
254. (1) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit.
(1A)............
(2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, .....
(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) or sub-section (2A) 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 4 SA No.14/Asr/2018 G.G. Oils&Fats Pvt. Ltd. v. Dy. CIT 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 assessee, extend the period of stay, or pass an order of stay for a further period or periods as it thinks fit; so, however, that the aggregate of the period originally allowed and the period or periods so extended or allowed shall not, in any case, exceed three hundred and sixty-five days and the Appellate Tribunal shall dispose of the appeal within the period or periods of stay so extended or allowed:
Provided also that if such appeal is not so disposed of within the period allowed under the first proviso or the period or periods extended or allowed under the second proviso, which shall not, in any case, exceed three hundred and sixty-five days, the order of stay shall stand vacated after the expiry of such period or periods, even if the delay in disposing of the appeal is not attributable to the assessee.
The provision is explicit, and limits the total period for which stay could be granted by the tribunal, irrespective of who is responsible for the non-disposal of the appeal during the period of the stay. The same, i.e., the third proviso to section 254(2A), inserted by Finance Act, 2008, which provides for a limitation on the inherent power of the tribunal to grant stay even where the delay in passing the order by the tribunal is not attributable to the assessee, has not found favour with the Hon'ble Courts. The same has been struck down as discriminatory and violative of Article 14 of the Constitution of India (COI) in Pepsi Foods Pvt. Ltd. v. Asst. CIT [2015] 376 ITR 87 (Del). This is as the assessees who after obtaining the stay orders and by their conduct delay the appellate proceedings have been treated in the same manner as the assessees who have not, in any way, delayed the proceedings in the appeal. The two classes, it stands explained, are distinct and cannot be clubbed together. The said clubbing, thus, amounts to a hostile discrimination against the assessees to whom the delay is not attributable, i.e., the 'well behaved' assessees, as the Hon'ble Court put it. Accordingly, the Hon'ble Court states of being in agreement with the view expressed in Narang Overseas 5 SA No.14/Asr/2018 G.G. Oils&Fats Pvt. Ltd. v. Dy. CIT Pvt. Ltd. v. ITAT [2007] 295 ITR 22 (Bom), again in exercise of the writ jurisdiction, that the tribunal has the power to stay on good cause being shown and on being satisfied that the matter could not be heard and disposed of for reasons not attributable to the assessee, i.e., even beyond 365 days. The same view stands expressed by the Hon'ble jurisdictional High Court in Pr. CIT v. Career Air Conditioning and Refrigerator Ltd. [2016] 387 ITR 441 (P&H), relying on its' earlier decision in CCE v. Voice Telesystems [2016] 7 VST-OL 177, rendered in the context of a pari materia provision, i.e., section 35C(2A) of the Central Excise Act, 1944. The Hon'ble Court also adverts to the decision in CCE v. Kumar Cotton Mills Pvt. Ltd. [2005] 180 ELT 434 (SC) for the purpose, as well as to Pepsi Foods Pvt. Ltd. (supra), reproducing therefrom. The power of the tribunal to grant stay beyond 365 days is, thus, subject to it being satisfied for good cause, i.e., in deserving cases, and where the delay in the hearing and/or disposal of the appeal by the tribunal is not attributable to the assessee.
Coming to the facts of the case, the delay is almost wholly attributable to the assessee, who sought adjournment 8 (eight) times from 29.11.2017 - the date of the first posting, to the last, i.e., 10.10.2018. In fact, on four occasions, i.e., on 10.04.2018, 08.05.2018, 26.06.2018 and 21.08.2018, adjournment was granted by way of 'final opportunity' to the assessee. This is unprecedented. Further, no substantive cause stands stated on any occasion. In fact, adjournment on each occasion was granted for the date/s agreeable to the parties. The indulgence on the part of the tribunal was principally for the reason that it considered that it would not be proper to proceed to hear the matter ex parte the assessee, the appellant, and at whose instance the stay stands granted. That is, with a view to get proper assistance qua the assessee's case, both the Revenue authorities having taken the same view in the matter. In other words, ensure proper representation from the assessee's side, so that there may not be any miscarriage of justice. Or, keeping the 6 SA No.14/Asr/2018 G.G. Oils&Fats Pvt. Ltd. v. Dy. CIT interest of justice uppermost in mind; even as the tribunal is not bound by the decisions of the lower authorities, or even the assessee's case for that matter, and is to decide the matters issuing findings of fact, in accordance with law. Rather, on 06.08.2018, the date of hearing falling between 11.07.2018 and 21.08.2018, as it appears, the words 'final opportunity' in the order-sheet entry seem to have been inadvertently omitted. This is as the adjournments on prior dates was being given only as 'final opportunity', as was the case in that next following, i.e., on 21.08.2018. In the context of the opportunity for representation, abundantly granted by the tribunal, the words 'final opportunity' in fact lose their significance, apart from emphasizing that the tribunal was acutely conscious that it being a stay granted and, thus, a time bound matter, which it sought to be convey thus. This, even as, needless to add, adjournment is never a matter of right, but a leave granted by the authority considering the obtaining facts and circumstances of the case. The Revenue during this period of two years, i.e., from 29.11.2017 to 21.01.2019 - the date for which the hearing stands adjourned to, sought adjournment only once, i.e., on 11.07.2018, on account of exceptional circumstances, even as noted in the relevant order-sheet entry. On the other dates, four in number, i.e., 14.12.2017, 04.01.2018, and again on 14.09.2018 and 08.10.2018, the Bench did not function, on the latter two dates on account of one of the members constituting the Bench having to go on tour at a short notice. The purport of the foregoing discussion is only to bring out, in an unequivocal fashion, that the delay in hearing and the disposal of the assessee's appeal in the instant case is, as afore-noted, squarely attributable to the assessee. In fact, the date on the last occasion, i.e., 10.10.2018, as clarified upon enquiry, was sought as one in the normal course, explaining that the stay had already expired on 06.10.2018 (in fact, on 05.10.2018), so that the hearing be adjourned in the regular course. This explains the adjournment to 7 SA No.14/Asr/2018 G.G. Oils&Fats Pvt. Ltd. v. Dy. CIT 23.01.2019, i.e., after over three months, as well as the disinclination for its' pre-
poning, upon being queried in its respect, by the ld. counsel, Sh. Arora.
4. In our clear view, therefore, it is not a fit case for grant of further stay by the tribunal which has, as apparent, already granted sufficient opportunity of hearing to the assessee. The plea of it being a separate stay application and, hence, subject to a fresh time limitation, stands already found as without merit. We, accordingly, declines stay. We are conscious of not discussing the merits of the assessee's application. This is in view of our finding it as not maintainable. In fact, no arguments on the same took place during hearing, even as otherwise apparent from the arguments advanced, as afore-noted.
5. In the result, the assessee's stay petition is dismissed.
Order pronounced in the open court on November 27, 2018 Sd/-
(Sanjay Arora) Accountant Member Per: N.K.Choudhrv (JM)
1. I have perused the order passed by the Hon'ble AM whereby the Hon'ble AM has rejected the stay petition filed by the assessee. Although I am in agreement with the result of the application, however, I realized that Hon'ble A.M. gone into various issues and determinations and made certain observations on which I do not have concurrence, hence writing this separate assent order.
2. This order shall disposed off the application filed by the assessee for seeking stay of the outstanding demand which is Rs.25,36,070/- on the 8 SA No.14/Asr/2018 G.G. Oils&Fats Pvt. Ltd. v. Dy. CIT pretext that earlier total outstanding demand was Rs.50.72 Lac and assessee has already paid 50% of the said amount in compliance of the interim stay granted by the Tribunal vide order dated 06.10.2017.
3. In the instant case, the appeal was filed on 29.09.2017 and stay against the outstanding demand was granted by Tribunal vide order dated 06.10.2017 and thereafter, on various occasions, some time on the request of the assessee and some time on non- functioning of the Tribunal, the case was adjourned and in the meantime, the stay order dated 06.10.2017 had expired on 05.10.2017 by afflux of time and thereafter on 06.11.2018, the assessee has again filed the application for stay, which is under consideration for staying of the demand outstanding, on the pretext that the assessee has filed the fresh application, therefore, the fresh limitation will start separately. Further, it has also been claimed that delay in disposal of the appeal is not solely because of the assessee, however, it has also been delayed due to non-functioning of the Bench on one or the other reason. Even the assessee has. The assessee has already deposited 50% of the outstanding amount and having prima-facie very good case to succeed in its favour, however, the Department is threatening the assessee to make the payment immediately or otherwise the coercive measures will be taken. Further, it was submitted that the money market is very tight and the business of the assessee has already been affected very much on account of levy of GST and the old Ugrahis are not forthcoming and therefore, the assessee is suffering a lot on account of increase in Dollar rate and heavy losses and due to heavy losses it is not possible for the assessee to make the payment which is outstanding. The Ld. Counsel, however, without prejudice of rights of the assessee also submitted that the assessee is ready to deposit further 10% of the outstanding amount.
9 SA No.14/Asr/2018G.G. Oils&Fats Pvt. Ltd. v. Dy. CIT
4. On the contrary, the Ld. DR vehemently opposed the stay application filed by the assessee and submitted if in any case, the stay is extended or freshly granted then the same can be subjected to deposit of at least 25% amount of total outstanding.
5. According to Sec. 254(2A), the time limit for existence of stay order has been prescribed as 365 days only and further prescribed that in any case, the stay shall stand vacated after the expiry of such period or periods not exceeding 365 days. The question therefore arises as to whether, the tribunal has any power to extend period of stay beyond 365 days.
The controversy has already been settled by the jurisdictional High Court in the case of CIT vs. Carrier Air Conditioning and Refrigerator Ltd. [2016] 387 ITR 441 (P&H) by holding that "where the appeal could not be decided by the Tribunal due to pressure of pendency of cases and delay in dispose off the appeal is not attributable to the assessee in any manner, the interim protection can continue beyond 365 days in deserving cases." Therefore, from the order passed by the jurisdictional High Court, no doubt the Tribunal has power to extend the stay beyond 365 days in deserving cases, however, the Hon'ble High Court has made a rider that delay in disposal of the appeal is not attributable to the assessee in any manner. Now coming to the instant case, may be on all occasions, the delay in disposal of appeal can not be not attributed to the Assessee, however, on some of the occasions, the assessee sought adjournments for one or the other reasons, although the reasons found reasonable by the Bench while granting the adjournments, however resulted into delay in disposal of appeal, as reflects from the daily orders.
In view of the peculiar facts and circumstances may be the assessee has good prima-facie cases but because of the legal embargo as mandated by 10 SA No.14/Asr/2018 G.G. Oils&Fats Pvt. Ltd. v. Dy. CIT the jurisdictional High Court, the assessee is not entitled for fresh stay and/or extension of the stay for further period beyond 365 days which have already been expired.
On the aforesaid consideration and analyzation, the application filed by the assessee stands dismissed.
Sd/-
N. K. Choudhry (Judicial Member) ITAT, Amritsar Bench Date: 27.11.2018 pkk.
Copy of the order forwarded to:
(1) The Appellant: M/s. G.G. Oils & Fats Pvt. Ltd., Bathinda (2) The Respondent: Deputy Commissioner of Income Tax, Bathinda. (3) The CIT (4) The CIT concerned (5) The Sr. DR, I.T.A.T True Copy By Order