|DATE:||(Date of pronouncement)|
|DATE:||October 26, 2013 (Date of publication)|
|Click here to download the judgement (motorola_ITAT_stay_refund.pdf)|
Dept hauled up for “over-zealousness” and “ham-handed” attempt to recover taxes in violation of stay order. Tribunal is duty-bound to order refund of such taxes
The AO raised a demand of Rs.210.57 crores by making certain adjustments for the AMP expenditure incurred. This was confirmed by the DRP. The assessee filed an appeal before the Tribunal as well an application before the CBDT under the Mutual Agreement Procedure (MAP) prescribed in Article 27 of the India-USA DTAA. The assessee also filed a stay application before the Tribunal. The Tribunal granted a stay of the demand for a period of 180 days or disposal of the appeal or of the MAP application, whichever is earlier. It was provided that the assessee sought an adjournment, the stay would be vacated. On the date fixed for hearing, the assessee pointed out that the issue of adjustments to the AMP expenditure was pending before the Special Bench in L. G. Electronics (since decided 152 TTJ 273) and so the appeal was adjourned. The AO took the view that as the assessee had sought an adjournment, the stay stood automatically vacated and so he attached the assessee’s bank account. The assessee filed an application u/s 151 of the CPC before the ITAT seeking refund of the amount recovered by the revenue. The Tribunal held that the adjournment was granted by it suo motu in conformity with judicial discipline as the issue was pending before the Special Bench. It held that the AO had acted in violation of the stay order and directed him to refund the amount collected. The Department filed a Writ Petition to challenge the said order. HELD by the High Court dismissing the Petition:
(i) A trivial adjournment, an overzealous revenue department, compelled apparently by year ending revenue collection targets, has led to this unnecessary litigation. It is not a case where the assessee sought an adjournment but one where the Tribunal chose to adjourn to await the decision of the Special Bench. Apart from that the show cause notice issued to the assessee does not refer to vacation of the stay order but refers to admission or not of the MAP application though that there was discussion relating to vacation of the stay order during the personal hearing. The AO should have been honest enough to issue a show cause notice on the ground that the stay order stands vacated. The vacillating stand of the revenue clearly indicates a confused state of mind, apparently compelled by the need to achieve targets fixed by superiors of the department;
(ii) As regards the jurisdiction of the Tribunal to order refund of the amount appropriated by the revenue, the Tribunal has rightly held that it is empowered, in view of nature of its jurisdiction, as well u/s 151 of the CPC to order refund, as the stay order has not been vacated. The power to ensure that its orders are not violated during pendency of a lis are inherent in any Court or Tribunal. In fact it is the bounden duty of the Tribunal to ensure where its order is violated that the violation is adequately redressed and money appropriated, is restituted. If such a power is held not to be available to the Tribunal, its interim orders would be flouted with impunity. If, the revenue was of the opinion that the stay order has been violated by the assessee or has been vacated, it should have approached the Tribunal for clarification by way of an appropriate application but instead proceeded in a ham-handed manner, to appropriate this amount.