|COURT:||Gujarat High Court|
|CORAM:||M. R. Shah J, S. H. Vora J|
|CATCH WORDS:||stay of demand|
|COUNSEL:||S. N. Soparkar|
|DATE:||June 12, 2015 (Date of pronouncement)|
|DATE:||June 27, 2015 (Date of publication)|
|FILE:||Click here to download the file in pdf format|
|S. 254(2A) third proviso cannot be interpreted to mean that extension of stay of demand should be denied beyond 365 days even when the assesseee is not at fault. ITAT should make efforts to decide stay granted appeals expeditiously|
The Tribunal passed an order extending stay of recovery of demand beyond the period of 365 days. The department filed a Writ Petition to challenge the said order on the ground that in view of the third proviso to section 254(2A) of the Act, the Tribunal has no jurisdiction to extend the stay of demand beyond 365 days. HELD by the High Court dismissing the Petition:
(i) It is true that as per third proviso to section 254(2A) of the Act, if such appeal is not so disposed of within the period allowed under the first proviso i.e. within 180 days from the date of the stay order or the period or periods extended or allowed under the second proviso, which shall not, in any case, exceed three hundred and sixty-five days, the order of stay shall stand vacated after the expiry of such period or periods, even if the delay in disposing of the appeal is not attributable to the assessee. Therefore, as such, legislative intent seems to be very clear. However, the purpose and object of providing such time limit is required to be considered. The purpose and object of providing time limit as provided in section 254(2A) of the Act seems to be that after obtaining stay order, the assessee may not indulge into delay tactics and may not proceed further with the hearing of the appeal and may not misuse the grant of stay of demand. At the same time, duty is also cast upon the learned Tribunal to decide and dispose of such appeals in which there is a stay of demand, as early as possible and within the period prescribed under first proviso and second proviso to section 254(2A) of the Act of the Act i.e. within maximum period of 365 days. However, one cannot lost sight of the fact that there may be number of reasons due to which the learned Tribunal is not in a position to decide and dispose of the appeals within the maximum period of 365 days despite their best efforts. Some of the reasons due to which the learned Tribunal despite its best efforts is not in a position to dispose of the appeal/appeals at the earliest are stated herein above. There cannot be a legislative intent to punish a person/ assessee though there is no fault of the assessee and/or appellant. The purpose and object of section 254(2A) of the Act is stated herein above and more particularly with a view to see that in the cases where there is a stay of demand, appeals are heard at the earliest by the learned Tribunal and within stipulated time mentioned in section 254(2A) of the Act and the assessee in whose favour there is stay of demand may not take undue advantage of the same and may not adopt delay tactics and avoid hearing of the appeals. However, at the same time, all efforts shall be made by the learned Tribunal to see that in the cases where there is stay of demand, such appeals are heard, decided and disposed of at the earliest and periodically the position/ situation is monitored by the learned Tribunal and the stay is not extended mechanically.
(ii) By section 254(2A) of the Act, it cannot be inferred a legislative intent to curtail/withdraw powers of the Appellate Tribunal to extend stay of demand beyond the period of 365 days. However, the aforesaid extension of stay beyond the period of total 365 days from the date of grant of initial stay would always be subject to the subjective satisfaction by the Tribunal and on an application made by the assessee / appellant to extend stay and on being satisfied that the delay in disposing of the appeal within a period of 365 days from the date of grant of initial stay is not attributable to the appellant / assessee. For that purpose, on expiry of every 180 days, the appellant / assessee is required to make an application to extend stay granted earlier and satisfy the Appellate Tribunal that the delay in not disposing of the appeal is not attributable to him / it and the Appellate Tribunal is required to review the matter after every 180 days and while disposing of such application of extension of stay, the Appellate Tribunal is required to pass a speaking order after having satisfied that the assessee / appellant has not indulged into any delay tactics and that the delay in disposing of the appeal within stipulated time is not attributable to the assessee / appellant. However, at the same time, it may not be construed that widest powers are given to the Appellate Tribunal to extend the stay indefinitely and that the Appellate Tribunal is not required to dispose of the appeals at the earliest. The object and purpose of section 35C(2A) of the Act particularly one of the object and purpose is to see that in a case where stay has been granted by the Tribunal, the Tribunal is required to dispose of the appeal within total period of 365 days, as ultimately revenue has not to suffer and all efforts should be made by the Tribunal to dispose of such appeals in which stay has been granted as far as possible within total period of 365 days from the date of grant of initial stay and the Tribunal shall grant priority to such appeals over appeals in which no stay is granted. For that even the Tribunal and/or registrar of the Tribunal is required to maintain separate register of the appeals in which stay has been granted fully and/or partially and the appeals in which no stay has been granted.
(iii) The Tribunal is also directed to see that the appeals of a particular assessee with respect same or similar issue involved in earlier years/with respect to respective years are clubbed together and heard and decided and dispose of together, may be with respect to a particular year, it is not a stay granted matter. The registry of the Tribunal to draw the attention of the learned Vice President of the Tribunal with respect to such appeals, so that all the appeals are clubbed together and decided and disposed of together, as it is reported that the powers of clubbing of the matters are only with the Vice President of the Tribunal. Registry also may insist that the paper books are filed by the assessee/department as early as possible and preferably within a period of three months from filing of the appeals so as to see that the purpose and object of section 254(2A) of the Act is achieved i.e. appeals in which the stay of demand has been granted by the Tribunal are decided and disposed of by the Tribunal at the earliest and within stipulated time and the Tribunal shall not grant unnecessary adjournments frequently due to non-availability of the advocate of the assessee and or the department’s representative, unless strong case for adjournment is made out, more particularly in a case where there is stay of demand during the pendency of the appeal.
(iv) It is also observed and held that while disposing of the application for extension of stay granted earlier, the Tribunal is required to pass a speaking / reasoned order or not. As observed hereinabove, the Tribunal can extend the stay granted earlier beyond the period of 365 days from the date of grant of initial stay, however, on being subjectively satisfied by the Tribunal and on an application made by the assessee / appellant to extend stay and on being satisfied that the delay in disposing of the appeal within a period of 365 days from the date of grant of initial stay, is not attributable to the appellant / assessee and that the assessee is not at fault and therefore, while considering each application for extension of stay, the Tribunal is required to consider the facts of each case and arrive at subjective satisfaction in each case whether the delay in not disposing of the appeal within the period of 365 days from the date of initial grant of stay is attributable to the appellant – assessee or not and/or whether the assessee / appellant in whose favour stay has been granted, has cooperated in early disposal of the appeal or not and/or whether there is any delay tactics by such appellant / assessee in whose favour stay has been granted and/or whether such appellant is trying to get any undue advantage of stay in his favour or not. Therefore, while passing such order of extension of stay, Tribunal is required to pass a speaking order on each application and after giving an opportunity to the representative of the revenue – Department and record its satisfaction as stated hereinabove. Therefore, ultimately if the revenue – department is aggrieved by such extension in a particular case having of the view that in a particular case the assessee has not cooperated and/or has tried to take undue advantage of stay and despite the same the Tribunal has extended stay order, revenue can challenge the same before the higher forum / High Court. (Commissioner of Customs and Central Exercise, Ahmedabad V. Kumar Cotton Mills Pvt. Ltd (2005) 180 ELT 434(SC) & Commissioner Vs. Small Industries Development Bank of India in Tax Appeal No.341 of 2014 followed; Commissioner of Income Tax Vs. Maruti Suzuki (India) Limited decided on 2.1.2014 in Writ Petition (Civil) No.5086 of 2013 not followed)
Stay is granted for various reasons. Hon Tribunal is not to have any subjective satisfaction as it is an adjudicating body,and as such Tribunal by necessity is an objective body only by all means, if it is subjective it has to recuse itself is mandatory thought in taxation jurisprudence too, as it is a last judicial body to decide all the facts.
Even if a section is inserted in Income Tax Act that is subject to be overruled by by hon tribunal as there is a natural justice principle is involved, as without deciding real crucial facts, the tribunal cannot pass any adjudicatory order even revenue is in trouble that could never be the restraining factor on justice delivering systems any where.
in a 2015 EU case on immigration issue of an Afghan refugee the UK SUPREME COURT turned down the secretary of state plea on certain section of immigration issue, that way judiciary works even in the UK.
How come a country called india with so called vibrant democracy could be made subject to subjective satisfaction ideas,if it is o it is into ridiculous.
The revenue argument devoid of any meaningful sense if read with fundamental rights like Art.14 in the indian constitution.
It is like Ms.Vasundera Raje as opposition leader in Assembly earlier issued her Supporting letter to Mr. Lalit Modi, an alleged fugitive, if not why he needed the UK CITIZENSHIP, is a case in point ;
subjective satisfaction of any section in any crucial Acts would not force judiciary not to be objective one has to learn in every political governance or over all governance.
speaking order of deficiency in a matter suffice it to extend any stay is my view, forget about the section of the tax account which is indeed some subjective treatment mechanics that need to be severed under doctrine of severability.