2013 (5) TMI 78 - AT - Income Tax

Tribunal Denies Stay Petition Challenging Order under Section 263

The tribunal dismissed the stay petition filed by the assessee against the order passed under section 263 by the Commissioner of Income-tax, Kolkata-III. ... Revision u/s 263 - pray for stay of operation of order u/s 263 - Held that:- A perusal of the decision of the Hon'ble Andhra Pradesh High Court in the case of Khalid Mehdi Khan (1977 (1) TMI 26 - ANDHRA PRADESH High Court) clearly shows that while granting the stay or any other inter-locutary order, the tribunal shall have to be keep in mind the period of limitation prescribed u/s. 153(2A) and pass order in light of the same. Admittedly, the limitation in the present case expires on 31-3-03. The appeal of the assessee is posted for hearing on 28-5-2013 As the limitation provided u/s. 153(2A) would expire by the time of the appeal is disposed of - stay cannot be granted to the assessee against the operation of the order passed u/s. 263 of the Act. On this ground itself the stay petition filed by the assessee stands dismissed. Issues:Stay petition filed by the assessee against the order passed under section 263 by the Commissioner of Income-tax, Kolkata-III.Analysis:The stay petition was filed by the assessee against the order passed under section 263 by the Commissioner of Income-tax, Kolkata-III. The assessee argued that the order giving effect to the section 263 order was due to be passed by a certain date. The assessee contended that the consequential order would result in substantial demands and multiple proceedings. The assessee requested a stay on the operation of the section 263 order pending appeal before the tribunal. The assessee cited relevant case laws to support the request for a stay.The revenue, represented by the JCIT/Sr.DR, opposed the stay petition. It was argued that granting a stay would render the proceedings infructuous as the time limit for giving effect to the section 263 order was expiring soon. The revenue emphasized that the tribunal should not grant a stay to the assessee.After considering the submissions from both parties, the tribunal noted that the appeal was scheduled for a hearing after the expiration of the time limit for passing the consequential order. The tribunal acknowledged its power to grant stays but also cited a decision by the Andhra Pradesh High Court emphasizing the need to consider the limitation period while granting such orders. As the limitation was set to expire before the appeal hearing, the tribunal dismissed the stay petition. However, in response to the assessee's request, the tribunal preponed the appeal hearing date as requested by the assessee's representative. Consequently, the stay petition filed by the assessee was dismissed.In conclusion, the tribunal dismissed the stay petition filed by the assessee against the order passed under section 263 by the Commissioner of Income-tax, Kolkata-III. The tribunal considered the limitation period and the scheduling of the appeal hearing in reaching its decision. The appeal hearing date was preponed as requested by the assessee's representative.