Honeywell Automation India Ltd vs. DCIT (ITAT Pune)

DATE: (Date of pronouncement)
DATE: March 29, 2011 (Date of publication)

Click here to download the judgement (honeywell_automation_stay_tribunal.pdf)

Direct Stay Application to Tribunal maintainable. Not necessary that lower authorities must be approached first

The assessee filed a stay application before the AO, Addl CIT & CIT but none of the authorities dealt with it. The assessee also filed a stay application before the Tribunal which was opposed by the Department on the ground that the application was not maintainable without there first being a rejection by the lower authorities. HELD dismissing the department’s objection:

(i) It is settled law that a Direct Stay Application filed before the Tribunal is maintainable and it is not the requirement of the law that assessee should necessarily approach the CIT before approaching the Tribunal for grant of stay. It does not make any difference whether the assessee filed any application before the Revenue and not awaited their decisions before filing application before the Tribunal or directly approached the Tribunal without even filing the applications before the Revenue authorities, when there exists threat of coercive action by the AO;

(ii) In deciding a stay application, the following aspects have to be considered: (i) liquidity of the funds of the assessee to clear the tax arrears out of own funds at the relevant point of time based on the assessee’s financial status at the time of the stay petition hearing; (ii) creditworthiness of the assessee to outsource the funds to clear the departmental dues; (iii) prima facie views on the likely decision of the Tribunal on the issues raised in the appeal; (iv) departmental urgencies in matters of collection and recovery; (v) guarantees provided by the assessee to safe guard the interest of the revenue etc.

The Minutes between the Bar & the Tribunal referred to in the above order is available here and here. See Also DHL Express (India) P Ltd vs. ACIT & the cases referred to there where the same view was taken.

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