Himachal Pradesh Board Of School ... vs Department Of Income Tax

The D.C.I.T., Vs. Himachal Pradesh Board of Circle Palampur, School Education, Dharamshala, Distt. Kangra. Distt. Kangra, H.P. PAN: AAAJH0373H (Appellant) (Respondent)

Applicant by : Shri S.K.Mittal Respondent by : Shri Ajay Vaidya Date of hearing : 09.01.2015 Date of Pronouncement : 09.01.2015

Per BHAVNESH SAINI, J.M. :

This order shall dispose off Miscellaneous Application

filed under section 254(2) of the Income Tax Act by Shri

D.R.Sharma, Deputy Commissioner of Income Tax, Circle

Palampur, Himachal Pradesh.

2. This Miscellaneous Application by the Department is filed

against the order of the Tribunal dated 8.8.2014 in Stay

Application No.26/Chd/2014 arising out of I TA

No.673/Chd/2014 for assessment year 2011-12. 2

3. Briefly, the facts of the case are that the assessee i.e.

Himachal Pradesh Board of School Education, Dharamshala

filed a Stay Application No.26/Chd/2014 in ITA

No.673/Chd/2014 for assessment year 2011-12 seeking stay

against the outstanding demand of Rs.10.16 crores. The

Tribunal after considering the submissions of both the parties

found the prima-facie case for grant of stay of the demand and

considering the status of the assessee being Government Body

stayed the outstanding demand subject to condition of

payment of Rs.50 lacs on or before 31.8.2014. The Stay

Application was accordingly allowed subject to this condition

vide order dated 8.8.2014.

4. The DCIT, Circle Palampur, H.P. filed the present

Miscellaneous Application under section 254(2) of the Act

briefly stating therein that the demand in question arises on

account of disallowance of exemption under section

10(23C)(iiiab) of the Act and assurance was given before the

Assessing Officer on behalf of the assessee to deposit 50% of

the demand. It is also alleged that the assessee has obtained

stay without making full and true disclosure and order of the

Tribunal is prejudicial to the interest of the Revenue and

since the assessee has agreed and given assurance for

payment of 50% of the demand before the Assessing Officer,

therefore, the order of the Tribunal may be rectified.

5. We have heard the learned representatives of both the

parties and perused the order of the Tribunal in question. At

the outset, we may note here that the Miscellaneous 3

Application under section 254(2) of the Act would lie if an

order under section 254(1) of the Act is passed by the

Tribunal. In this case the order dated 8.8.2014 is passed in

Stay Application which is interim/interlocatory in nature.

The stay order was subject to certain conditions and would

merge with the main order on disposal of the appeal itself.

Therefore, the interim order passed by the Tribunal in Stay

Application would not be regarded as an order passed under

section 254(1) of the Act. Thus the Miscellaneous Application

filed by the Revenue would not be maintainable and would be

dismissed as such. Apart from the above, we are of the view

that the present Miscellaneous Application is devoid of merit.

When the Tribunal is seized of the appeal filed by the assessee

and the interim order granting stay has been passed, whatever

assurance was given to the Assessing Officer could not be

subject matter of the Miscellaneous Application. The

Assessing Officer has no authority to challenge the order of

the Tribunal merely on the ground that some assurance was

given before the Assessing Officer. Once the order on the

Stay Application has been passed by the Tribunal, any

assurance given before the Assessing Officer would be

meaningless and could not be the subject matter in the

Miscellaneous Application. If the Assessing Officer was not

satisfied with the order of the Tribunal, the remedy lies before

the higher Forum to challenge the order of the Tribunal but

not in the present Forum. The learned counsel for assessee

placed a copy of challan to show that Rs.50 lacs have been 4

paid as per the directions of the Tribunal in the Stay

Application.

6. Considering the totality of the facts and circumstances

above, it is clear that the Assessing Officer has filed the

present Miscellaneous Application merely because some

assurance given before the Assessing Officer was not complied

with. It would show that the Assessing Officer has shown

deliberate defiance to the order of the Tribunal and such act

on behalf of the Assessing Officer would be wholly unjustified

and we hope that the Assessing Officer would not repeat such

type of mistake in future. With these observations, we do

not find any merit in the Miscellaneous Application.

7. Considering the above discussion the Miscellaneous

Application filed by the Revenue fails and is dismissed.

8. In the result, the Miscellaneous Application filed by the

applicant is dismissed.

Order pronounced in the open court on this 9th day of

January, 2015.

Sd/- Sd/-

(T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER

Dated : 9 t h January, 2015

*Rati*

Copy to: The Appellant/The Respondent/The CIT(A)/The CIT/The DR.

Assistant Registrar, ITAT, Chandigarh 5