Watermask Capital Ltd , vs Assessee
- CitationITA No. 6735/Mum/2014)
Ratio decidendi
The rule this decision rests on
The Tribunal has no power to dismiss an appeal for non-appearance of the assessee; the statutory language of section 254(1) does not confer such a power, and the earlier decision of the Bombay High Court relied on by the first appellate authority (the Chemipol order) is displaced by the later Bombay High Court decision in Bharat Petroleum Corporation Ltd. and the Supreme Court decision in Chenniappa Mudaliar, which the Tribunal treats as controlling. Where an appeal raises a tax adjustment between the parties, it must be disposed of on merits rather than dismissed for default of appearance, and the Commissioner (Appeals) likewise lacks power under section 250(6) to dismiss for non-appearance. Where the assessee shows a strong prima facie case on merits and the balance of convenience favours it, the Tribunal may grant ad interim stay of collection of the outstanding demand pending disposal of the appeal, with the stay continuing until the next date of hearing where an adjournment is sought for reasonable cause.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Date of Hearing: 05.03.2015 Date of Pronouncement: 05.03.2015 2 SA No. 70 to 72 & 79&80/Mum/2015 M/s. Watermark Capital Ltd. & Watermark Systems India (P) Ltd. ORDER
Per D. Manmohan, V.P.
By these applications the assessee seeks stay of collection of outstanding demand and also requested for posting the appeals on out of turn basis.
2. The case of the learned counsel for the assessee is that the learned CIT(A) has no power to dismiss the appeals on the technical ground that none appeared on behalf of the assessee. The learned CIT(A) relied upon the order passed by the Hon'ble Bombay High Court in the case of M/s. Chemipol vs. Union of India in Central Excise Appeal No. 62 of 2009 to hold that if the assessee does not appear on the date fixed for hearing it has to be presumed that the assessee is not interested in pursuing the appeal. However, the learned counsel for the assessee adverted our attention to the latter decision of the Hon'ble Bombay High Court in the case of Bharat Petroleum Corporation Ltd. 359 ITR 371 to submit that the Tribunal has no power to dismiss an appeal for non-appearance and it being a tax adjustment between two parties it has to be disposed on merits. He also referred to the decision of the Hon'ble Supreme Court in the case of Chenniappa Mudaliar 74 ITR 41 which was in turn referred to by the Hon'ble Bombay High Court to submit that the Tribunal has no power to dismiss the appeal for non-appearance as could be noticed from the expression couched in section 254(1) of the Act. He also submitted that even under section 250(6) of the Act the Commissioner has no power to dismiss the appeal for non-appearance. He therefore submitted that the assessee has a strong prima facie case on merits and the balance of convenience is in favour of not only granting stay of collection of outstanding demand but also requested for posting the appeals at the earliest.
3. We have heard the learned D.R. in this regard and carefully perused the record. Having regard to the circumstances of the case we are of the view that the assessee has a strong prima facie case on merits and, therefore, the balance of convenience is in favour of granting ad interim stay. We hereby direct the Registry to post the appeals on 17.03.2015. The stay shall be 3 SA No. 70 to 72 & 79&80/Mum/2015 M/s. Watermark Capital Ltd. & Watermark Systems India (P) Ltd.
operational till 17.03.2015. It may be clarified that if there is a reasonable cause under which either the assessee or the Revenue seeks adjournment the stay shall be operational till the next date of hearing.
4. In the result, the stay applications filed by the assessee are allowed.
Order pronounced in the open court on 5th March, 2015.
Sd/- Sd/- (R.C. Sharma) (D. Manmohan) Accountant Member Vice President
Mumbai, Dated: 5th March, 2015
Copy to:
1. The Appellant 2. The Respondent 3. The CIT(A) - 7, Mumbai 4. The CIT - 3, Mumbai 5. The DR, "G" Bench, ITAT, Mumbai
By Order
//True Copy// Assistant Registrar ITAT, Mumbai Benches, Mumbai n.p.
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