Income Tax Appellate Tribunal - Kolkata
Vodafone East Limited ( Foremerly Known ... vs Assessee on 24 July, 2013
आयकर अपीलीय अधीकरण, Ûयायपीठ - "A", कोलकाता,
IN THE INCOME TAX APPELLATE TRIBUNAL "A" BENCH : KOLKATA
[ सम¢ ौी के. के. गुƯा, लेखा सदःय एवं ौी जॉज[ म1थान, Ûयायीक सदःय ]
[Before Hon'ble Shri K.K. Gupta, AM & Hon'ble Shri George Mathan, JM
ःटे आवेदन संÉया / S.P Nos. 48 to 50/Kol/2013
[In ITA Nos. 673//Kol/2011, 431/Kol/ 2013 & 1864/Kol/2012 A.Ys: 2007-08, 2008-09 & 2009-10]
M/s. Vodafone East Limited Vs. A.C.I.T/D.C.I.T, Cir-7, Kolkata
PAN : AACU-3796-J
[आवेदक /Applicant] [ू×यथȸ/Respondent]
आवेदक /Applicant by : S/Shri Deepak Chopra & Harpret Ajmani, . Advocates,
Akash Mansinka, ACA, ld.ARs
ू×यथȸ/ Respondent by : Shri Varinder Mehta, ld. CIT/ DR
सुनवाई कȧ तारȣख/Date of Hearing : 24-07-2013
घोषणा कȧ तारȣख/Date of Pronouncement: 24-07-2013
आदे श/ORDER
पार बɅच / PER BENCH These are three stay petitions filed by the assessee for the assessment years 2007- 08, 2008-09 and 2009-10 in ITA Nos. 673/Kol/2011, 431/Kol/2013 and 1864/Kol/2012.
2. S/Shri Deepak Chopra & Harpret Ajmani, . Advocates, and Akash Mansinka, ACA, learned ARs represented on behalf of the assessee and Shri Varinder Mehta, learned CIT/(.DR) represented on behalf of the revenue.
3. It is contended by the learned AR for the assessee that originally the assessee had filed stay petitions before the tribunal. The tribunal had given direction of stay vide an order dated 15-03-2013. Aggrieved by the order of the tribunal, the assessee had filed a writ petition before the Hon'ble Jurisdictional High Court of Calcutta. The Hon'ble Jurisdictional High Court of Calcutta vide its order in APOT No.205 of 2013, G.A No. 1241 of 2013, W.P No. 304 of 2013 dated 26-04-2013 had modified the order of the tribunal dated 15-03-2013 by holding that the assessee is to pay an amount of Rs. 5 crores only for the assessment years 2009-10 and no further payment was directed for from the assessee for the assessment years 2007-08 & 2008-09. The Hon'ble Jurisdictional High Court of Calcutta in the writ petition had held as follows :-
Mr.Nizamuddin, learned Advocate for the respondent contended that the condition imposed is reasonable in so far as the demand for the assessment year 2009-10 is concerned. He added that taking into consideration the overall situation, the direction is not unreasonable.
We have not been impressed by the submission advanced by Mr. Nizamuddin. For the assessment years 2007-08 and 2008-09, the Tribunal 2 [S.P Nos. 48 to 50/Kol/13 PB-A GM had already decided to grant stay. The appeal could not be heard out by the Tribunal within the period of stay and therefore, prayer for extension was made. If the Tribunal itself could not hear out the appeal within the time, for which stay had earlier been granted, the assessee could not have been asked to furnish further security for those years, namely, assessment years 2007-08 and 2008-09.
Considering that the direction to pay Rs. 15 crores is against the combined demand for the aforesaid three assessment years and considering that the question of stay for the assessment years 2007-08 and 2008-09 had already been allowed, we are inclined to divide the sum of Rs. 15 crores by 3 = Rs.5 crores. Therefore, the amount is reduced to Rs.5 crores. The appeal is thus partly allowed. The direction to pay Rs. 15 crores is varied by a direction to the appellant to pay a sum of Rs. 5 crores within two weeks from date. It is clarified that the bank guarantee of a sum of Rs. 10 crores will continue and shall be kept renewed from time to time until the appeal is finally disposed of by the Tribunal and shall also be subject to any order which may be passed by the Tribunal in that regard.
3.1 It was the submission by the learned AR for the assessee that as the Hon'ble High Court has only modified the quantum of demand to be paid and has not modified the period of stay granted by the tribunal in its order dated 15-03-2013 and as the stay expired as per the said order of the tribunal dated 15-03-2013 on 306-06-2013, the assessee is now before the tribunal seeking further extension of stay for all the three assessment years. On a specific query from the bench as to how the tribunal can entertain/interfere when the Hon'ble High Court in its order in APOT No.205 of 2013, GA No. 1241 of 2013, W.P No.304 of 2013 dated 26-04-2013 has categorically held that ' it is clarified that the bank guarantee of a sum of Rs. 10 crores will continue and shall be kept renewed from time to time until the appeal is finally disposed of by the tribunal and shall also be subject to any order which may be passed by the Tribunal in that regard'.
The learned AR for the assessee submitted that only the quantification of the amount of the stay has been made by the Hon'ble High Court and the period of limitation of the stay has not been interfered by the Hon'ble High Court. But when the same query was put to the learned CIT (DR) he submitted that he was not competent to interpret the directions of the Hon'ble High Court.
4. We have considered the rival submissions. The main portion of the findings of the Hon'ble High Court has already been extracted above. A perusal of the said direction and finding of the Hon'ble Jurisdictional High Court of Calcutta in APOT No.205 of 2013, GA No. 1241 of 2013, W.P No.304 of 2013 dated 26-04-2013 clearly shows that for the assessment years 2007-08 and 2008-09 the Hon'ble High Court has already granted the stay by allowing the writ petition of the assessee for those two assessment years. In view 3 [S.P Nos. 48 to 50/Kol/13 PB-A GM of the specific finding of the Hon'ble High Court the assessee needs to pay only an amount of Rs. 5 crores and the bank guarantee of Rs.10 crores will continue and shall be kept renewed from time to time until the appeal is finally disposed of by the tribunal, it clearly shows that even for the assessment year 2009-10 the Hon'ble High Court has granted the assessee the stay of recovery till the disposal of the appeal by the tribunal. The order of the Hon'ble High Court is final as on today. As the the Hon'ble High Court being the higher judicial forum has already granted the assessee the stay of recovery of the taxes till final disposal of the appeal by the tribunal, we are of the view that the tribunal is functuous officio in so far as the issue of stay in the assessee's case is concerned. In the circumstances, the stay petitions filed by the assessee for the assessment years 2007-08, 2008-09 & 2009-10 in ITA Nos. 673/Kol/2011, 431/Kol/2013 and 1864/Kol/2012 stand dismissed.
5 In the result, the above stay petitions filed by the assessee are dismissed.
Order pronounced in the open Court as dictated on 24-07-2013 Sd/- Sd/-
[ के. के. गुƯा, लेखा सदःय ] [जॉज[ म1थान, Ûयायीक सदःय]
[ K.K. Guptal, Accountant Member ] [George Mathan, Judicial Member ]
तारȣख/ Dated 24-07-2013
आदे श कȧ ूितिलǒप अमेǒषत/Copy of the order forwarded to:
1. आवेदक /Applicant : M/s. Vodafone East Limited (Formerly known as Vodafone Essar East Ltd) 11 Dr. U.N Brahmachari Street, Kol-17 2 ू×यथȸ/ Respondent : ACIT/DCIT, Cir-7, Kolkata
3. आयकर किमशनर/ CIT,
4. आयकर किमशनर (अपील)/CIT(A),
5. वभािगय ूितनीधी/DR, Kolkata Benches, Kolkata **PP/SPS [स×याǒपत ूित/True Copy] आदे शानुसार/ By order, सहायक पंजीकार/Asstt Registrar.