Commissioner Of Income Tax vs Sri S.Duraipandi & on 18 December, 2018

4.In our considered view, there may not be any necessity for the Court to examine the legal aspects to answer the substantial questions of law since this Court is of the view that the Tribunal should have awaited the decision of this Court in the case of ACIT vs. V.N.Devadoss in T.C.A.Nos.821 to 824 of 2014. In fact this was brought to the notice of the Tribunal by the revenue and a copy of the interim order of stay dated 26.11.2014 granted by the Hon'ble Division Bench of this Court in those appeals were produced before the Tribunal and in paragraph 8 of the impugned order, the Tribunal has extracted the interim order granted by the Hon'ble Division Bench. Nevertheless, in paragraph 9, the Tribunal would state that the issue regarding the period for which interest has to be charged under Section 234A and 234B of the Act is not the subject matter of appeal before the High Court and therefore regardless of the said order being granted by the Hon'ble Division Bench, the Tribunal holds that the direction given by the Commissioner of Income Tax (Appeals) to the Assessing Officer to re-compute the correct chargeable interest under the provisions of the Section 234A and 234B of the Act as per the decision in the http://www.judis.nic.in case of ACIT vs. V.N.Devadoss, in our considered view is improper. What is required to be seen is the substantial questions of law raised in T.C.A.Nos.821 to 824 of 2014 which touches upon the larger issue and in fact they are identical to the substantial questions of law raised in these appeals as well. If the first two substantial questions of law are answered, consequently the Court will have to answer the substantial question of law No.3.

5.Nextly, we would like to observe that when an order of stay is granted by the High Court in a tax case appeal, it cannot obviously stay the statutory provision. Nevertheless, it has got power to stay the finding recorded by the Tribunal against which the appeal emanates. Thus, by granting an order of stay, it pre-supposes that the Court has come to the prima facie conclusion that the appellant has made out a case for admission and therefore, the appeal has been admitted. As rightly contended by the learned counsel for the revenue that very rarely the revenue file a stay petition in a tax case appeal. Therefore, when an appeal is entertained and stay has been granted, the Tribunal which is inferior to the jurisdictional High Court shall keep the matter in abeyance and should avoid interpretation of the question raised in the appeal which is pending before the jurisdictional High Court unless it is clearly established that the cases are factually different. Such a contingency does not arise in these appeals because the Tribunal has affirmed the order passed by the Commissioner of Income Tax (Appeals) who issued a direction by following http://www.judis.nic.in the directions issued in the case of ACIT vs. V.N.Devadoss. In the light of the above, we are of the considered view that the appeals should be kept pending before the Tribunal and await the decision in T.C.A.Nos.821 to 824 of 2014.

6.For the above reasons, these tax case appeals filed by the revenue are allowed, the common order passed by the Tribunal is set aside and the matter is remanded back to the Tribunal with a direction to the Tribunal to await the decision in the case of ACIT vs. V.N.Devadoss in T.C.A.Nos.821 to 824 of 2014. No costs.

                                                                        (T.S.S., J.)      (N.S.K., J.)

                                                                                  18.12.2018

                      cse

                      Index: Yes/No

                      Internet: Yes/No


                      To

                      1.The Income Tax Officer,
                        Ward - I(2), International Taxation,
                        Chennai - 600 034.

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