Ram Tradvin(P) Ltd., Kolkata vs Assessee

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH "B", KOLKATA

[Before Hon'ble Shri Mahavir Singh, JM & Hon'ble Shri Shamim Yahya, AM] S.P.No.09/Kol/2015 A/o ITA No.1086/Kol/2014 Assessment Year : 2009-10

(APPELLANT ) (RESPONDENT) M/s.Shri Ram Tradevin (P)Ltd. I.T.O., Ward-9(4) Kolkata -versus- Kolkata (PAN: AAMCS 3519 H)

For the Appellant: None For the Respondent: Shri Ajay Kr.Singh, CIT(DR)

Date of Hearing : 25.02.2015 Date of Pronouncement : 25.02.2015.

ORDER

Per Shri Mahavir Singh, JM

This is a Stay Petition filed by the assessee against the operation of order passed u/s 263 of the IT Act by the Commissioner of Income Tax, Kolkata-III, Kolkata.

2. None represented on behalf of the assessee despite of service of notice on the assessee by revenue. The proof of service by revenue is available in the file. Shri Ajay Kr.Singh, CIT(DR) represented on behalf of the Revenue.

3. In the similar cases we are taking a consistent stand that the operation of the order of revision passed u/s 263 of the Act by CIT cannot be stayed. The precedent in the case of West Bengal Cooperative Marketing Federation Ltd., Kolkata vs CIT for A.Yr.2008-09 dated 11.11.2013 vide SP No.45/Kol/2013 arising out of ITA No.820/Kol/2013 wherein it has been held as under :-

S.P.No.09/Kol/2015 in ITA No.1086/Kol/2014 2 M/s.Shri Ram Tradevin (P) Ltd.,Kolkata A.Yr.2009-10

"5. We have considered the rival submissions. A perusal of the order of the Hon'ble High Court of Calcutta in the case of Kailash Prasad Jain vs CIT, Central-III, Kolkata in ITA No.232 of 2006 dated 12.11.2010 as referred to by the ld. AR clearly shows that the Hon'ble Calcutta High Court has not held anywhere in the said order that the Tribunal has power to give a blanket stay in 263 proceedings. In fact the words used in the said decision are " The legal proposition explained by Dr.Pal would be appropriate when it would be found that the authority concerned lacks inherent jurisdiction in the subject matter". Thus admittedly if there is an absolute lack of jurisdiction when the ld. CIT passed order u/s 263, admittedly one could look towards considering whether any interim order is called for. Such lack of inherent jurisdiction has not been shown in the present case. However, a perusal of the decision of the Hon'ble Andhra Pradesh High Court in the case of ITO vs Khalid Mehdi Khan reported in 110 ITR 79 (AP) has under similar circumstances categorically held that "while granting stay or any other interlocutory order, the Tribunal shall have to keep in mind period of limitation prescribed in section 153(2A) and pass orders in light of same." The decision of the Hon'ble Delhi High Court in the case of CIT vs ITAT WP (C) No.4684 of 2010 dated 3rd August, 2012 also does not say that operation of the order u/s 263 can be stayed without taking into consideration the issue of limitation. In fact in the case before the Hon'ble Delhi High Court when the stay was granted by the Tribunal Delhi Benches of the ITAT limitation was still available. In the present case, however, granting stay of the operation of order passed u/s 263 by the ld. CIT would have an effect to make the order of the ld. CIT infractuous in so far as the limitation itself would expire for the purpose of giving effect to the order passed u/s 263.

5.1. Here we may also draw reference to an earlier stay order passed in the case of Narendra Kumar Mehta in SP No.31/Kol/2013 dated 24th May, 2013 wherein the Coordinate Bench of this Tribunal had held as follows :-

"3. It was the submission by the Id. A.R. that this stay petition is for the stay of proceedings consequent to the order passed under section 263 by Id. CIT~XIX, Kolkata for the assessment year 2005-06 vide order dated 25:03.2013: It was the submission that original assessment had been done under section 143(3), which was subject matter of 263 order dated 15.02.2010 and the. consequent order had also been passed on 06.07.2010 It was the submission that further 263 had been initiated on the same grounds. It was the submission that stay of proceedings may be granted in respect 'of the consequentially proceedings to the order passed under section 263.

4. In reply, ld. DR submitted that stay of proceedings in respect of the consequential order passed under section 263. It was the submission that once stay petition is granted, normally it operates for 180 days and another extension of 180 days could be granted resulting. a total loss of one year time. It was the submission that extension of the limitation in respect of Stay of proceedings provided in section 153 .. The Explanation 1 thereto did not permit for the exclusion in respect of. the period of limitation.' It was the submission that Stay of the proceedings should not be granted.

. . . . .

5. We have considered the rival submissions. As it is noticed· that the claim of ld. DR that the exclusion provided in the Explanation 1 to section 153 does not cover the period of stay ·granted by the Tribunal, seems to be a S.P.No.09/Kol/2015 in ITA No.1086/Kol/2014 3 M/s.Shri Ram Tradevin (P) Ltd.,Kolkata A.Yr.2009-10

reasonable ground expressed by the ld. D.R. and as no purpose would be served by staying proceedings in respect of giving effect to the order passed under section 263 rather than delaying in time available to the assessee to respond to the requisition by the Assessing Officer in the interest of natural justice, we are of the view that stay should not be granted in this case and the same stands dismissed. However, considering the prayer of the assessee, the assessee is granted early hearing of its appeal and the appeal of the assessee shall stand posted for early hearing on 03.07.2013. The Registry shall post the appeal of the assessee in respect of this Stay petition before the Bench on 03.07.2013. No notice shall be issued to the assessee as the date of hearing has been intimated in the open Court."

5.2. In the said decision one of us was a party to the corum of the Bench. In the circumstances the Stay Petition filed by the assessee stands dismissed. However, as the issue is in regard to the appeal filed against the order u/s 263 which is treated as priority matter, the appeal filed by the assessee in ITA No.820/Kol/2013 is directed to be posted for early hearing on 09.12.2013. The registry is directed accordingly. "

4. In view of the above precedent, we find that the facts in the present petition is identical to the same. Hence, this stay petition is dismissed. But this petition is in response to the directions of Hon'ble Calcutta High Court in Writ Jurisdiction vide order sheet WP 128/2015 dated 12th February, 2015 wherein the directions of the Hon'ble High Court was that , "After having heard the learned counsel for the parties, this writ application is disposed of by directing the ITAT to consider the question of stay of the section 263 order dated 13th March, 2014 on the existing papers, or upon the petitioner filing an application for stay within one week from date, within three weeks from this date. For a period of four weeks from date, the Assessing Officer will not take any coercive steps against the petitioner. After four weeks this order will automatically stand vacated and any action by the Income tax Department will abide by the order passed by the Assessing Officer or to be passed by the Appellate Tribunal "

In view of the directions of the Hon'ble Calcutta High Court, we feel that let the appeal be heard at an early date to avoid any injustice to the assessee. Hence we fix the appeal for hearing on 4th March, 2015. No further notice will be sent to either of the parties. This order will be treated as a notice. Registry is directed to serve this order on urgent basis.

S.P.No.09/Kol/2015 in ITA No.1086/Kol/2014 4 M/s.Shri Ram Tradevin (P) Ltd.,Kolkata A.Yr.2009-10

5. In the result the Stay Petition filed by the assessee is dismissed. The appeal of the assessee is posted for early hearing.

Order pronounced in the open court.

Sd/- Sd/- [Shamim Yahya] [ Mahavir Singh ] Accountant Member Judicial Member

Date: 25.02.2015.

R.G.(.P.S.)

Copy of the order forwarded to:

1. M/s.Shri Ram Tradevin (P)Ltd., 14C, Maharshi Devendra Road, 4th Floor, Kolkata-700007.

2 The I.T.O., Ward-9(4), Kolkata

3. CIT -III, Kolkata 4. CIT(A)- , Kolkata.

5. DR, Kolkata Benches, Kolkata

True Copy, By order,

Deputy /Asst. Registrar, ITAT, Kolkata Benches