Vodafone West Limited (Formerly Known ... vs Department Of Income Tax
- CitationITA No. 386 and 387/Ahd/2011
Ratio decidendi
The rule this decision rests on
The Tribunal may, consistently with the jurisdictional High Court's decision in the Small Industries Development Bank of India matter, extend a stay of demand beyond the total period of 365 days under the third proviso to section 254(2A), where the delay in disposing of the appeal is not attributable to the assessee and no delay tactics have been adopted by it. Where a jurisdictional High Court has held a point of statutory construction in its favour, the Tribunal is bound to follow that decision in the absence of any contrary authority or distinguishing feature, and a Misc. Application challenging the Tribunal's power to extend a stay on the basis of a contrary view cannot succeed.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
ी एन0एस0 सैनी, लेखा सद य एवं ी कुल भारत, या%यक सद य के सम& BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER MA No.15 and 16/Ahd/2015 IN S.P. NO.85 and 86/Ahd/2014 IN आयकर अपील सं./ ITA No. 386 and 387/Ahd/2011 %नधा)रण वष)/Assessment Year: 2008-09 and 2009-10
ACIT, TDS Circle M/s.Vodafone West Ltd. Ahmedabad. Vs (Formerly known as Vodafone Essar Gujarat Ltd. Vodafone House Corporate Road Ahmedabad 380 015. PAN: AAACF 1190 P
अपीलाथ,/ (Appellant) -.यथ,/ (Respondent)
Revenue by : Shri Roopchand, Sr.DR Assessee(s) by : Shri S.N. Soparkar
सन ु वाई क तार ख/ Dateof Hearing : 17/04/2015 घोषणा क तार ख / Date of Pronouncement: 29/04/2015
आदे श/O R D E R
PER N.S. SAINI, ACCOUNTANT MEMBER: These two Misc.
Application are filed by the Revenue against the consolidated order of the Tribunal passed in Stay Application Nos.85 and 86/Ahd/2014 dated 10.10.2014 extending the stay of demand to the assessee for further period of three months from the date of order or disposal of the appeal, whichever is earlier.
2. The grievance of the Revenue in these MAs is that the Tribunal has extended stay beyond 365 days, which is beyond the power of the Tribunal in view of 3rd proviso of section 254(2A) of the Act. The Senior MA No.15 and 16/Ahd/2015 2
Advocate, Shri S.N. Soparkar appearing on behalf of the assessee, filed before us a copy of the order of the Hon'ble Gujarat High Court dated 9.7.2014 passed in the case of Commissioner ..... Appellant Vs. Small Industries Development Bank of India, Tax Appeal No.341 of 2014 & Ors. The Hon'ble High Court has proposed the following substantial question of law:
(i) Whether the learned Appellate Tribunal has jurisdiction to extend the stay granted earlier beyond the total period of 365 days in view of statutory provisions contained in section 35C(2A) of the Central Excise Act, 1944 ?
(ii) Whether even if it is held that the learned Appellate Tribunal can extend the stay granted earlier beyond the total period of 365 days, the learned Appellate Tribunal is required to pass a speaking order/reasoned order considering 3rd proviso to section 35C(2A) of the Central Excise Act, 1944 ?
3. He pointed out from page no.12 of the said order that the Hon'ble High Court at para 4.05 has quoted order of the Hon'ble Bombay High Court dated 30.7.2007 in the case of Navrang Overseas P. Ltd. Vs. Income Tax Appellate Tribunal, Mumbai rendered in Writ Petition No.1454 of 2007, by which, while interpreting para-materia provisions under Income Tax Act, section 254(2A) of the Act, it was held that if it is found by the Appellate Tribunal that delay in disposing of the appeal within 365 days is not attributable to assessee, and there is no delay tactics adopted by the assessee, the Appellate Tribunal can extend the stay even beyond the total period of 365 days. He further referred to page 14 of the said order, para.5.02 and submitted that after analyzing the provisions, the Hon'ble High Court finally at page no.24 para 5.06.3 observed that the decision of the Hon'ble Bombay High Court in the case of Narang Overseas Pvt. Ltd. Vs. the Income Tax Appellate Tribunal, while considering para-materia provision of section 254(2A) of Income Tax Act, had followed the decision of the Hon'ble Supreme Court in the case of Commissioner of Cust. & C. Exc., Ahmedabad Vs. MA No.15 and 16/Ahd/2015 3
Kumar Cotton Mills Pvt. Ltd., 2005 (180) ELT 434 (SC). The Hon'ble High Court then at para 5.07 of its order, after analyzing the law, has finally concluded that the Appellate Tribunal may extend the stay beyond the total period of 365 days from the date of grant of initial stay and even thereafter. He pointed out from Misc. Petition that the Revenue has challenged before the Tribunal, only the power of the Tribunal to grant the stay, which is now covered by the decision of the Hon'ble jurisdictional High Court. The DR could not cite any contrary decision before us. He also could not point out any distinguishing features to show that why the decision of the Hon'ble Gujarat High Court should not be followed by the Tribunal. Therefore, we find no merit in the Misc. Petition of the Revenue, and accordingly, the same are dismissed.
4. In the result, both the Misc. Applications of the Revenue are dismissed.
Order pronounced in the Court on Wednesday the 29th April, 2015 at Ahmedabad.
Sd/ Sd/- (KUL BHARAT) ( N.S. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER
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