Income Tax Appellate Tribunal - Pune
Vaishali Pigments P.Ltd,, Aurangabad vs Commissioner Of Income Tax (A)-Xii,, ... on 5 May, 2017
आयकर अपीऱीय अधिकरण पुणे न्यायपीठ "ए" पुणे में
IN THE INCOME TAX APPELLATE TRIBUNAL
PUNE BENCH "A", PUNE
सुश्री सुषमा चावऱा, न्याययक सदस्य एवं श्री राजेश कुमार, ऱेखा सदस्य के समक्ष
BEFORE MS. SUSHMA CHOWLA, JM AND SHRI RAJESH KUMAR, AM
SA Nos.41 & 42/PUN/2017
Assessment Years : 2011-12 and 2013-14
Vaishali Pigments Pvt. Ltd.,
C/o Jhaveri Flexo India Ltd.,
Gut. No.74, Farola,
Paithan Road,
Aurangabad - 431105 .... Applicant
PAN: AAACV6638E
Vs.
The Commissioner of Income Tax(A)-XII, Pune .... Respondent
Applicant by : Shri Deepak Shah
Respondent by : Shri Suhas Kulkarni
सुनवाई की तारीख / घोषणा की तारीख /
Date of Hearing : 05.05.2017 Date of Pronouncement: 05.05.2017
आदे श / ORDER
PER SUSHMA CHOWLA, JM:
The present Stay Applications have been filed by the applicant for stay of the prosecution proceedings launched by the CIT(A).
2. Briefly, in the facts of the case, search under section 132 of the Act was conducted at the business and residential premises of the Jhaveri group and family members on 20.08.2014. The applicant was also covered under the said search 2 SA Nos.41 & 42/PUN/2017 action. In response to notice under section 153A of the Act, the applicant filed the return of income declaring Nil income. The Assessing Officer however, completed assessment under section 143(3) r.w.s. 153A of the Act at Rs.3.79 crores. The addition made in the hands of applicant was on account of on-money received against plot No.6, wherein sum of Rs.2.37 crores was added on substantive basis and sum of Rs.1.42 crores was added on protective basis. The applicant has filed an appeal before the CIT(A) against the order of Assessing Officer challenging the assessment made under section 143(3) r.w.s. 153A of the Act, on various grounds. Without going into the issue raised before the CIT(A), it may be mentioned herein itself that the appeal is pending for disposal before the CIT(A). Meanwhile, the Principal Commissioner of Income Tax (Central), Nagpur vide letter dated 01.03.2017 has issued Show cause notice to the applicant before sanction under section 279(1) of the Act for launching prosecution under section 276C(1) r.w.s. 278B and 278E for assessment years 2011-12 and 2013-14. The applicant is show caused that where notice under section 153A of the Act was issued and in response thereto, the applicant had failed to file the return of income within due date, consequent to which various notices under section 142(1) of the Act, dated 16.05.2016, 26.05.2016 and 27.05.2016 were issued and served upon the applicant. The e-return of income was filed by the applicant on 01.12.2016 declaring total income at Nil and thereafter, notice under section 143(2) of the Act was issued on 05.12.2016. The Principal CIT records that the assessment was completed making the addition in the hands of applicant and penalty proceedings were also initiated under section 271(1)(c) of the Act. He further notes that the applicant had willfully attempted to evade the tax, penalty or interest chargeable or imposable under the Income Tax Act under section 276C(1). The Principal CIT was of the view that the applicant was liable for prosecution under section 276C(1) 3 SA Nos.41 & 42/PUN/2017 of the Act and also the Managing Director or Directors were simultaneously liable for prosecution being co-accused under section 278B of the Act. However, before prosecution is sanctioned in the case of applicant, the Pr. Commissioner mentioned that he would like to ascertain the applicant‟s version on facts. He directed the applicant to furnish the reply in his office on or before 10.03.2017 or applicant may attend in person.
3. In reply, the applicant had filed letter dated 15.03.2017 in which it is submitted that against the assessment order framed, appeal has been preferred for both the years, which are pending before the CIT(A)-12, Pune. It was also pointed out that pending the appellate proceedings against the assessment order, even the penalty under section 271(1)(c) of the Act was not levied and was kept in abeyance. The applicant thus, pointed out that it would be premature to conclude that it had willfully attempted to evade any tax, penalty or interest, etc. so as to invoke the provisions of section 276C of the Act. A request was made for keeping initiation of proceedings under section 276C r.w.s. 278B and 278E of the Act in abeyance for both the years till the penalty proceedings initiated under section 271(1)(c) of the Act are attained finality. Certain other submissions were also made before the Commissioner. The learned Authorized Representative for the applicant pointed out that there was personal appearance before the CIT and the reply was filed but no action has been taken thereafter.
4. The applicant has filed the present Stay Application before the Tribunal and in the said application vide column (6) has mentioned that the CIT(A) himself has launched prosecution, therefore, the appellant is compelled to prefer a stay 4 SA Nos.41 & 42/PUN/2017 application before the Tribunal. In the reasons for seeking stay in column (7), it is mentioned that "Department has launched prosecution".
5. Shri Deepak Shah appeared on behalf of the applicant and made reference to the letter issued by the Pr. Commissioner dated 01.03.2017 and also drew our attention to the reply of the assessee dated 15.03.2017 filed before the Pr. Commissioner. He further placed reliance on the ratio laid down by the Hon‟ble High Court of Gujarat in ACIT Vs. GE India Industrial (P.) Ltd. (2014) 46 taxmann.com 374 (Gujarat) and pointed out that in the facts of the case before the Hon‟ble High Court, penalty proceedings were initiated by the Commissioner where the quantum appeal was pending before the Tribunal. The Tribunal in the absence of any penalty appeal pending before it, granted stay of penalty proceedings. He further stressed that the power of Tribunal was inherent to see that the order is not rendered nugatory. Secondly, he pointed out that pendency of appeal before the Tribunal is not necessary to decide the stay application. He thereafter, placed reliance on the ratio laid down by the Delhi Bench of Tribunal in Jindal Steel & Power Ltd. Vs. ACIT (2015) 60 taxmann.com 475 (Delhi - Trib).
6. The learned Departmental Representative for the Revenue pointed out that the stay application is premature, where only the show cause notice has been issued to the applicant for launching prosecution under section 276C(1) r.w.s 278B and 278E of the Act. It was stressed by the learned Departmental Representative for the Revenue that no prosecution proceedings have been launched against the applicant and the reasons stated in the application for seeking stay that the Department has launched prosecution are incorrect. It was also pointed out that it the Principal CIT, who has issued show cause notice to the applicant and has not 5 SA Nos.41 & 42/PUN/2017 launched any prosecution. Reliance was placed on the ratio laid down by Hon‟ble High Court of Punjab and Haryana in Pr. Commissioner of Income Vs. ITAT, Delhi Benches, New Delhi in Civil Writ Petition No.15239 of 2015, judgment dated 31.10.2015, by which the order of Delhi Bench of Tribunal in Jindal Steel & Power Ltd. Vs. ACIT (supra) has been reversed.
7. The learned Authorized Representative for the applicant in rejoinder referred to the decision of the Hon‟ble apex Court in K.C. Builders VS. ACIT (2004) 135 Taxman 461 (SC) to point out that levy of penalty under section 271(1)(c) of the Act and prosecution under section 276C of the Act were simultaneous and the Hon'ble Supreme Court had held that once penalties are cancelled on the ground that there is no concealment, quashing of prosecution under section 276C of the Act is automatic. It was at that juncture itself pointed out to the learned Authorized Representative for the assessee that the decision of the Hon'ble Supreme Court is in Criminal Appeal No.212-213 of 1998, judgment dated 28.01.2014 and is not against any proceedings before any of the authorities under the Income Tax Act.
8. We have heard the rival contentions and perused the record. The present stay applications have been moved by the applicant and the reasons mentioned for seeking stay is to launching of prosecution by the Department. The applicant in the stay application mentions that the CIT(A) himself has launched prosecution, therefore, the appellant is compelled to prefer stay application before the Tribunal. However, the perusal of documents annexing the stay application reflects that the prosecution has not been launched till date and further it is the Principal CIT (Central), Nagpur and not the CIT(A) who has only issued show cause notice before sanction under section 279(1) of the Act for launching prosecution under section 276C(1) r.w.s. 278B and 278E of the Act for assessment years 2011-12 6 SA Nos.41 & 42/PUN/2017 and 2013-14. The perusal of notice issued reflects that since the applicant had failed to furnish the return of income in response to notice issued under section 153A of the Act within 30 days from the receipt of said notice and had not complied with various notices issued under section 142(1) of the Act, then the applicant was show caused to the effect that it had willfully attempted to evade tax, penalty or interest chargeable or imposable under the Income Tax Act under section 276C(1) of the Act. The Principal CIT observes that before prosecution is sanctioned in the case of the company, he would like to ascertain the version of the applicant on facts, for which the said show cause notice was issued. The applicant is aggrieved and has alleged that the Department has launched prosecution. The said claim of the applicant is incorrect as no prosecution has been launched. This is stage of issue of show cause notice only and not launching of prosecution. The learned Authorized Representative for the applicant vehemently argued that the present prosecution proceedings should be stayed and the Tribunal has the inherent power to see that the order passed is not rendered nugatory. He also stressed that pendency of the appeal before the Tribunal is not relevant for granting stay of the proceedings. Reliance was placed upon the order of Hon‟ble High Court of Gujarat in ACIT Vs. GE India Industrial Pvt. Ltd. (supra).
9. In the facts of the case before the Hon‟ble High Court of Gujarat in ACIT Vs. GE India Industrial Pvt. Ltd. (supra), the Tribunal‟s power to grant stay relating to assessment year 2004-05 were taken up, wherein the appeal against the quantum proceedings was pending before the Tribunal. The applicant therein sought stay of the penalty proceedings pending before the CIT(A) on the ground that the order of Tribunal would have a bearing on the aforesaid penalty proceedings under section 271(1)(c) of the Act. The question which was put up before the Hon‟ble High Court 7 SA Nos.41 & 42/PUN/2017 was whether the Tribunal in exercise of power under section 254 of the Act would have jurisdiction and / or power of doing all such acts, or employing such means, as are essentially necessary to its execution and that statutory power carries with it duty in proper cases to make such orders for staying proceedings inclusive of penalty proceedings as would prevent appeal if successful from being rendered nugatory. The answer to the question was „yes‟ and it was held that the Tribunal had power to grant stay of penalty proceedings as incidental or ancillary to the appellate jurisdiction. The Hon‟ble High Court held that while exercising such power of stay has to be satisfied that a strong prima facie case is made out and entire purpose of appeal would be frustrated or rendered nugatory by allowing such penalty proceedings to continue, during pendency of appeal. The Hon‟ble High Court of Gujarat had place reliance on the ratio laid down by the Hon'ble Supreme Court in ITO Vs. MK Mohammed Kunhi (1969) 71 ITR 815 (SC) and held as under:-
"5.2 ....
After analyzing various decisions of the High Court and the English judgments, finally it is held that the Appellate Tribunal must be held to have power to grant stay as incidental or ancillary to its appellate jurisdiction. It is further held that when section 254 confers appellate jurisdiction, it impliedly grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution and that the statutory power carries with it the duty in proper cases to make such orders for staying proceeding as will prevent the appeal if successful from being rendered nugatory. However, while holding so, the Supreme Court has also observed that the power of stay by the Tribunal is not to be exercised in a routine way or as a matter of course, in view of the special nature of taxation and revenue laws. It will only be when a strong prima facie is made out that the Tribunal will consider whether to stay the recovery proceedings and on what conditions and the stay will be granted in most deserving and appropriate cases where the Tribunal is satisfied that the entire purpose of the appeal will be frustrated or rendered nugatory by allowing the recovery proceedings to continue during the pendency of the appeal. Thus, as such in the aforesaid decision, the Supreme Court has specifically held that while exercising the powers under section 254 of the Income- tax Act, the Tribunal has the implied power of doing such acts, or employing such means, as are essentially necessary to its execution and that the statutory power carries with it the duly in proper cases to make such orders for staying proceeding as will prevent the appeal if successful from being rendered nugatory.
......
5.3.....8
SA Nos.41 & 42/PUN/2017 5.4 In the present case, as stated hereinabove, and with a view to avoid multiplicity of proceedings and harassment to the assessee and considering section 275(l)(a) of the Income-tax Act, when the Commissioner of Income-tax (Appeals) will get further six months time to dispose of the penalty proceedings from the end of the month in which the order of Tribunal is received by the Commissioner/Chief Commissioner, when the Tribunal has stayed the penalty proceedings during the pendency of the appeal before it, it cannot be said that the Tribunal has exceeded in its jurisdiction and/or the said order is illegal and/or perverse which calls for interference of this court in exercise of powers under articles 226/227 of the Constitution of India.
6. In view of the above and for the reasons stated above, it is held that the Income- tax Appellate Tribunal in exercise of the powers under section 254 of the Income- tax Act would have jurisdiction and/or power of doing all such acts, or employing such means, as are essentially necessary to its execution and that the statutory power carries with it the duty in proper cases to make such orders for staying proceedings (inclusive of penalty proceedings) as will prevent the appeal if successful from being rendered nugatory and the Appellate Tribunal has the power to grant stay as incidental or ancillary to its appellate jurisdiction. However, while exercising such power of stay, the Tribunal has to be satisfied that there is a strong prima facie case made out and the Tribunal is satisfied that the entire purpose of appeal would be frustrated or rendered nugatory by allowing the recovery proceedings/penalty proceedings to continue, during pendency of the appeal. It is also observed that in a case where the Appellate Tribunal grants the stay either of recovery and/or stay of penalty proceedings, the Appellate Tribunal shall see to it that the appeal before it is decided and disposed of finally at the earliest and preferably within a period of three months so that the appellant-assessee may not take undue advantage by delaying the appeal proceedings."
10. It may be clarified herein itself that the appeal before the Hon‟ble High Court of Gujarat was relating to assessment year 2004-05, wherein under the provisions of section 275(1)(a) of the Act, it is provided that no order imposing penalty under the Chapter shall be passed where the case is subject matter of appeal before the CIT(A) under section 246 / 246A or an appeal to the appellate Tribunal under section 263 of the Act and it is provided that the penalty proceedings may be completed within six months from the end of month in which the order of CIT(A) or as the case may be, the appellate Tribunal is received by the Principal Commissioner. The proviso thereunder is inserted by the Finance Act, 2003 w.e.f. 01.06.2013, under which it is provided that where the assessment or any other order is the subject matter of appeal to the CIT(A) under section 246 / 246A of the Act and the CIT(A) passes the order on or after first day of June, 2003, then an 9 SA Nos.41 & 42/PUN/2017 order imposing penalty shall be passed before expiry of financial year in which the proceedings in the course of which action for imposition of penalty had been initiated or completed, or within one month from the end of the financial year in which the order of CIT(A) is received by the Commissioner, etc. whichever is later. In other words, after first day of June, 2003, it has been provided in the Act itself that the order of penalty is to be passed after quantum appeal is decided by the CIT(A), within stipulated time therein. The earlier provisions of section provided that such an order could be passed even after six months of the order of Tribunal on merits. However, the said provisions have undergone a change.
11. The issue of stay of proceedings for prosecution under section 276C(1) of the Act arose before the Hon‟ble High Court of Punjab and Haryana in Pr. Commissioner of Income Tax Vs. ITAT, Delhi Bench, New Delhi in Civil Writ Petition No.15239 of 2015, judgment dated 31.10.2015, wherein the plea of Revenue was that the proceedings for prosecution under section 276C(1) of the Act were independent of assessment / penalty proceedings. Reference was made to the provisions of section 254 of the Act which confers power upon the Tribunal to grant of stay and there is no provision which whether directly or by inference confers power to file an appeal against the order directing prosecution much less against show cause notice proposing to initiate prosecution. It was further argued by the Revenue in the said case that the power conferred by section 254(1) of the Act to "pass such orders thereon as it thinks fit", is circumscribed by the expression "any proceedings relating to an appeal" used in the first proviso to section 254(1) of the Act. The expressions "any proceedings relating to an appeal" and "pass such orders thereon as it thinks fit" have to be read as conferring power in the context of the appeal pending before the Tribunal. It was further argued by the Counsel for 10 SA Nos.41 & 42/PUN/2017 the Revenue before the Hon‟ble High Court that a willful attempt to evade tax having been prima-facie established, notice under section 276 was a necessary but independent consequence. The pendency of the quantum and other appeals cannot be said to be so intrinsically linked to the prosecution as to empower the Tribunal to stay prosecution.
12. The case of the applicant before the Hon‟ble High Court was that the show cause notice proposing to initiate prosecution, is based in its entirety upon the order passed under section 263 of the Act, the assessment order and the order passed in penalty proceedings. The question, therefore, is not whether prosecution proceedings are independent or assessments and penalty, but, whether the show cause notice proposing to initiate prosecution is so intrinsically linked to the outcome of the appeals as would require the revenue to keep consideration of the show cause notice in abeyance. Counsel for the assessee also submits that decision in the pending appeals would have a direct bearing on the consideration of the show cause notice and in case the appeals are allowed or the impugned orders are modified, the show cause notice would either be rendered infructuous or the matter would have to be reconsidered. It was vehemently argued by the applicant that the words "relating to an appeal", used in section 254 of the Act and the words, "pass such orders thereon as it thinks fit" used in the proviso empower the Tribunal to stay consideration of the show cause notice. The consideration of the notice is so intrinsically linked to the outcome of the appeals, as to be inseparable. Reliance was placed upon the ratio laid down by the Hon'ble Supreme Court in ITO Vs. MK Mohammed Kunhi, 1971 ITR 815 and on various other decisions. 11
SA Nos.41 & 42/PUN/2017
13. The Hon‟ble High Court noted that the assessment was completed under section 143(3) of the Act at income of Rs.1033.26 crores as against the assessee having filed the return of income at Rs.766.99 crores. The Commissioner noted that deduction of Rs.81.59 crores on account of Sales Tax subsidy / capital reserve, electricity subsidy was wrongly claimed in addition to various other claims and on account of additional depreciation. He initiated proceedings under section 263 of the Act and partly set aside the assessment order and restored the assessment to the file of Assessing Officer. Fresh assessment was made by the Assessing Officer adding Rs.81.59 crores claimed on account of Sale Tax subsidy and other amounts on account of additional depreciation for computers and Rs.1.40 crores under section 43B of the Act. The assessee filed an appeal against the order passed by the Commissioner under section 263 of the Act and also against the assessment order passed by the Assessing Officer pursuant to the order of Commissioner under section 263 of the Act. The Assessing Officer also initiated penalty proceedings under section 271(1)(c) of the Act and passed an order dated 28.11.2013 imposing penalty. The appeal of assessee against the imposition of penalty was dismissed by the CIT(A). The applicant filed two appeals before the Tribunal; one against the quantum appeal and the other is against the penalty. One appeal against the order passed under section 263 of the Act was already filed before the Tribunal and at that juncture, the Revenue served notice calling upon the applicant to show cause why prosecution be not initiated under section 276C(1) of the Act. The applicant did not file any reply but instead filed an application in the appeal challenging the imposition of penalty before the Tribunal for stay of prosecution. The case of the Revenue before the Tribunal was lack of jurisdiction to stay prosecution. However, the Tribunal ordered that the launching of prosecution shall remain in abeyance upto next date of hearing. The said 12 SA Nos.41 & 42/PUN/2017 application was adjourned from day-to-day and it finally came up for hearing and the Tribunal granted stay against initiation of prosecution, wherein it recorded a finding that it is empowered by section 254 of the Act to stay the prosecution. The following questions were framed by the Hon‟ble High Court:-
"a) Whether section 254 of the Income Tax Act, 1961 empowers the Income Tax Appellate Tribunal to interfere in prosecution proceedings either at the stage of show cause notice or at any other stage?
b) Whether pendency of quantum appeals by the assessee and the Revenue, appeals against penalty and appeals challenging orders passed consequent to an order passed under section 263 of the Income Tax Act, would confer power / jurisdiction upon the Tribunal to stay a show cause notice calling upon the assessee to show cause why prosecution be not launched?"
14. The Hon‟ble High Court noted the ratio laid down by the Hon'ble Supreme Court in ITO Vs. MK Mohammed Kunhi (supra) and observed as under:-
"A perusal of the aforesaid judgment reveals that the power to grant stay was held to be inherent in section 254, (as it existed before the power to grant stay was conferred), i.e. inhers a power to do all such acts or employ all such means, as are essential for the exercise of the power of appeal including the power to grant stay, in proper cases and to make such orders for staying proceeding to prevent the appeal, if successful being rendered nugatory. Thus, the power to grant stay was read into section 254 of the Act but to a limited extent. Section 254(1) was, thereafter, amended."
15. The Hon‟ble High Court referring to the powers conferred upon the Tribunal under section 254(1) of the Act observed that the question which requires an answer whether the other words or expressions would include the power to stay proceedings or orders, which are not appealable or appealable during pendency of appeal but are likely to be affected by the outcome of the appeal. The Hon‟ble High Court held as under:-
"A key to the understanding of the power to grant stay lies in the expressions "pass such orders thereon as it thinks fit" and "any proceedings relating to an appeal", used in Section 254(1) and the proviso appended thereto. The aforesaid expressions, in our considered opinion, confine the power of a Tribunal, to pass an interim order in relation to matters pending before the Tribunal and at best to matters that are so intrinsically linked to the lis pending before the Tribunal, as to be inseparable. The exercise of power must be confined to matters that are directly 13 SA Nos.41 & 42/PUN/2017 and substantially in issue or matters that flow directly and substantially from the order impugned before the Tribunal but cannot be extended to matters in which the Tribunal has no jurisdiction even, though, these matters may be incidentally affected by the outcome of the appeal.
This apart once it is accepted that proceedings for prosecution are independent of assessment and penalty, and the Tribunal is neither the appellate nor the revisional authority in a case where prosecution is launched, the mere fact that the decision in the appeal may have an impact on the prosecution, in our considered opinion, cannot be used to read into the expressions "pass such orders thereon as it thinks fit" or "any proceedings relating to an appeal", a power in the Tribunal to direct that prosecution or a show cause notice shall be kept in abeyance. There is another aspect of the case- name if such a Power, as has been canvassed by the assessee, were available to the Tribunal, prosecution would have to await the final outcome of proceedings up to the Supreme Court.
We are unable to discern any legislative intent or power as would confer upon the Tribunal power to stay consideration of a show cause notice proposing to initiate prosecution, by reading into Section 254, the power to stay independent proceedings merely because they may be affected by the decision of a pending appeal. The legislature having conferred power to grant stay in terms, used in Section 254 (1) and the first proviso, we cannot add to or subtract from the words and expressions used in Section 254(1) or by a process of interpretation confer jurisdiction which legislature, in our considered opinion, did not intend to confer. A prosecution being a consequence of infractions by an assessee cannot be said to be act of harassment or mischief so as to confer power upon the Tribunal, to order that prosecution shall be kept in abeyance.
The judgment by the Delhi High Court in The Commissioner of Income Tax (Central-II) v. Income Tax Appellate Tribunal and others (supra), has to be read in the context of its own peculiar facts, namely, an order was passed under Section 263, restoring the assessment to the Assessing Officer, The assessee filed an appeal. The Income Tax Appellate Tribunal, stayed assessment proceedings. The order was upheld, by the Delhi High Court as assessment proceedings were intrinsically linked to and not severable from the legality of the order passed, under section 263, namely, jurisdiction to re-open an assessment."
16. The Hon‟ble High Court further observed that in the present situation, the Revenue had only initiated notice to show cause as to why the prosecution be not launched. It observed that where the Tribunal was neither the appellate nor the Revisional Forum against the prosecution, then a prayer for stay of prosecution or stay of the show cause would, therefore, have to be made by resort to other remedies provided under law and not by praying for a stay before the Tribunal. It would also be appropriate to point out that the notice to show cause why 14 SA Nos.41 & 42/PUN/2017 prosecution be not initiated is a purely administrative act and it is only after consideration upon the notice and the reply reaches fruition, may the assessee seek his legal remedies in accordance with law. As already recorded, the appeal may have a bearing on the consideration of the show cause notice and the reply filed thereto, but we are not inclined to read into section 254(1) or the proviso thereto, power in a Tribunal to stay consideration of the show cause notice or the power to direct that the show cause notice be kept in abeyance. The Hon‟ble High Court concluded by holding that under section 254 of the Act, no power is conferred upon the Tribunal to infer any prosecution under the Act, either at the stage of show cause notice or at any other stage. The pending of appeals regarding quantum and penalty and / or an appeal challenging the order under section 263 of the Act would not confer power upon the Tribunal to stay consideration of show cause notice calling upon the applicant why prosecution be not launched. It was concluded by the Honble High Court by holding that the judgment was confined to the power of Tribunal but no opinion was recorded with respect to any other remedy that may or may not be available to the applicant against the show cause notice. Thus, the Writ Petition filed by the Revenue was allowed.
17. The facts of the present case are identical to the facts before the Hon‟ble High Court of Punjab and Haryana (supra), wherein show cause notice has been issued by the Pr. Commissioner only to the applicant before prosecution is sanctioned in the case of applicant in order to ascertain the factual aspects of the case. In view of the ratio laid down by the Hon'ble Supreme Court, the Tribunal has no power to stay consideration of show cause notice proposing to initiate prosecution, in view of the powers conferred upon the Tribunal under section 254 of the Act. The pendency of appeals or otherwise would not confer power upon the 15 SA Nos.41 & 42/PUN/2017 Tribunal to stay consideration of show cause notice calling upon the assessee to show cause why prosecution be not launched.
18. In the result, both the Stay Applications filed by the applicant are dismissed.
Order pronounced on this 5th day of May, 2017.
Sd/- Sd/-
(RAJESH KUMAR) (SUSHMA CHOWLA)
ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER
पण
ु े / Pune; दिनाांक Dated : 5 May, 2017.
th
GCVSR
आदे श की प्रयिलऱपप अग्रेपषि/Copy of the order is forwarded to :
1) The Applicant;
2) The Respondent;
3) The Pr. CIT (Central), Nagpur;
4) The DR "A" Bench, I.T.A.T., Pune;
5) Guard File.
आदे शानुसार/ BY ORDER,
सत्यापपत प्रतत //True Copy//
सहायक पांजीकार / Assistant Registrar,
आयकर अपीऱीय अधिकरण, पुणे / ITAT, Pune