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2005 (9) TMI 250
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....1 with effect from 1-6-2001, whereby the power to grant stay, on each occasion, was restricted to a maximum period of 180 days, as upon the expiry of that period, the stay order shall stand automatically vacated. According to the learned counsel, prior to insertion of the aforementioned provisos, the Tribunal enjoyed unbridled power to grant absolute stay. Clarifying the statement, the learned counsel submitted that section 253(6) was amended by the Finance Act, 1998 with effect from 1-10-1998, to enhance the appeal fee payable to the Tribunal at the time of filing of appeal, by an assessee, and the Legislature used the following express language- "253. (1) to (5)" (6) an appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner and shall, in the case of an appeal made, on or after 1-10-1998, irrespective of the date of initiation of the assessment proceedings relating thereto, be accompanied by a fee of,- (a) to (d) Proviso** ** **" The Legislature has expressly stated that the amendment should be applied to an appeal made on or after 1-10-1998, 'irrespective of the date of initiation of the assessment proceeding....
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....y Petition, observing in paras 6 and 8 of its order as under:- "6. Rival contentions heard. On a careful consideration of the facts and circumstances of the case, we are of the considered opinion that once the Hon'ble High Court has modified the order of the Tribunal, directing the assessee to continue to pay instalment of Rs. 5 lakhs per month, it is no more open for this Bench to take contrary view and grant further relief to the assessee as the facts and circumstances of the case has not undergone a change. While the order of this Bench dated 20-12-2004 in S.P. No. 181/Hyd./2004 as modified by the Hon'ble A.P. High Court in 24335/2004 is in operation, we deem it fit not to interfere in the same, as it is not demonstrated before us that there is a change in the facts and circumstances between the date of the order of the Hon'ble A.P. High Court and today. 8. On this factual position of the matter and especially in view of the judgment of the Hon'ble High Court of A.P. in W.P. No. 24335/2004, we dismiss this stay petition filed by the assessee. We reiterate that the earlier order of the Tribunal as modified by the Hon'ble High Court would continue to remain in operation. Ord....
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....got vacated until the main appeal was disposed of. But according to the amendment made w.e.f. 1-6-2001, a stay order 'shall stand vacated' after 180 days of the granting of the stay. This amendment is injurious to the assessee. This injurious amendment cannot be forced on an assessee who acquired a vested right to follow the unamended appeal procedure. The right to make use of an existing appeal procedure which is favourable to an assessee is a substantive right (but not a procedural right). Such substantive right gets vested in a person as soon as 'lis' proceedings or litigation) starts in an inferior Court. In the income-tax context, the 'lis' starts as soon as an Assessing Officer issues the first hearing notice under section 143(2). If that date of issue of the hearing notice issued by the Assessing Officer is before 1-6-2001 then the pre-amended provisions of section 254 will continue to apply to such an assessee. Even if an assessee files an appeal (before the Tribunal) after 1-6-2001 or even if he files a stay petition after 1-6-2001, the two provisos to section 254(2A) cannot be applied to such an assessee and the Tribunal will have no jurisdiction to invoke those two provi....
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....ontinues to operate in spite of subsequent legislative amendments in the appeal procedures. See pages 120, 122, 123 and 124 of 1953 4 STC. The Supreme Court stated at page 123 of the journal: 'The pre-existing right of appeal is not destroyed by the amendment if the amendment is not retrospective by express words are necessary intendment. The fact that the pre-existing right of appeal continues to exist, in its turn necessarily implies that the old law which created the right of appeal must also exist to support the continuation of that right. As the old law continues to exist for the purpose of supporting the pre-existing right of appeal, that old law must govern the exercise and enforcement of that right of appeal and there can then be no question of the amended provision preventing the exercise of that right.' In this case, the Supreme Court held that the assessee need not pay the full tax for pursuing his appeal and it is enough if he pays only his admitted tax. Effect of any Supreme Court judgment: A judgment of Supreme Court is the law of the land under article 141 of Constitution of India and every authority, Tribunal, and Court should necessarily follow the r....
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....dment w.e.f. 15-6-1957 according to which the Sales Tax Appellate Tribunal should not entertain any appeal filed by an assessee unless he has paid the full tax as determined after the first appeal was disposed of. In this case the following was the chronology of the events: Hearing notice issued by the Assessing Officer (i e., the Commercial Tax Officer) 14-3-1957 Assessment order dated 25-3-1957 Date of amendment 15-6-1957 First appellate order dated 9-4-1962 Sales Tax Appellate Tribunal's (STAT's) notice to assessee asking the assessee to pay full tax as determined by the first appellate authority 24-10-1962 The Andhra Pradesh High Court held that t....
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....rom Raja Bahadur on 4-7-1950 For the next accounting year 1950-51, the Assessing Officer issued a similar notice on 12-6-1951 The High Court held that the new law is not applicable for the accounting year 1949-50, but it is applicable for the next accounting year 1950-51. CIT v. Bengal Card Board Industries & Printers (P.) Ltd. [1989] 176 ITR 193 (Cal.): The Legislature inserted sub-section (4) in section 249 of the Income-tax Act with effect from 1-10-1975 and according to this amendment the first appellate authority caninot entertain an appeal unless the assessee has paid the full undisputed tax. The following are the relevant dates: The Assessing Officer issued a hearing notice under section 143(2) before 31-7-1975 The assessment under section 143(3) was passed on 31-7-1975 ....
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....econd proviso in view of the binding nature of the Supreme Court judgment in the case of Hoosein Kasam Dada (India) Ltd. Hence there is no legal validity for the stay order Nos. SP-181 and SP-74 passed by the Tribunal. This principle is laid down by the Supreme Court in the following case: Baradakanta Mishra v. High Court of Orissa AIR 1976 SC 1899: In this case a High Court reduced the rank of an Additional District and Sessions Judge to that of an Additional District Magistrate (Judicial) and thereafter dismissed him from service. These orders were confirmed by the Governor of the State. However, under the conditions of the service of the Additional District and Sessions Judge, only the Governor has the power to dismiss him or to reduce his rank. Since the High Court (instead of the Governor) has imposed these penalties the Supreme Court held that the order passed by the High Court was void. It held that the subsequent confirmation of that order by the Governor had no legal force. The Apex Court observed in para 25 of its order: 'Further, the contention of the High Court that the orders of dismissal passed by the High Court merged in the orders passed by the Govern....
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.... the present case, the rate of net profit estimated by the respondent is exorbitant. There is a pritna facie chance that the assessee will get a huge refund if the Tribunal disposes of the pending appeal. If the net profit is estimated at 15 per cent of the turnover (instead of 32.9 per cent as estimated by the Assessing Officer) the assessee will get a refund of Rs. 14,04,443. Even if the Department estimates the net profit of 21.3 per cent (which is the rate disclosed by the assessee for the earlier year) still there be a refund of Rs. 3,70,419. Thus there is no scope for altering the stay order already granted by the Tribunal. According to the judgment given by the Kerala High Court in the case of Gajanaria Agency v. ITO [1999] 210 ITR 865 where there is a prima facie case to stay the entire outstanding demand an assessee should not be directed to pay the outstanding demand even in instalments, since recovery through instalments is also a mode of collection. According to CBDT's circular No. 589 dated 16-1-1991 the CBDT clarified that when an assessee is not financially sound he should not be forced to pay the disputed demand. The assessee (ATE) closed down its busine....
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....erein the Bench categorically observed that the stay granted by its order dated 27-2-2004 got vacated due to operation of law under second proviso to section 254(2A) of the Act. He also submitted that the case law relied upon by the learned counsel are distinguishable on facts. 7. We have carefully considered the rival submissions and perused the records. At the outset, it must be noticed that in the case of this very assessee, in S.P. No. 181/Hyd./04, this Bench has observed in its order dated 20-12-2004 that the stay granted vide its order dated 27-2-2004 stood vacated due to operation of law. Unless the said order is reversed by a superior court, any comment on the order dated 27-2-2004 would amount to reviewing the said order. Since the power to review an earlier order, is not vested in the I.T.A.T., it is too late in the day to reconsider the matter to pronounce that the stay granted by the order dated 27-2-2004 survives only for a period of 180 days or beyond the said date. Similar view is expressed by the Tribunal in its subsequent order dated 16-5-2005 in S.P. No. 74/Hyd./2005. Though p we have extracted relevant portions of the said order herein-above, it is worthwhile ....
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....ilable to it, merely because a particular mode is beneficial to the assessee, it cannot be assumed that the bench intended to adopt such mode. 8. The case law relied upon by the learned counsel for the assessee are distinguishable on facts. In the case of Hoosein Kasam Dada (India) Ltd. the issue is whether a provision which is calculated to deprive an assessee of the unfettered right of appeal is a matter of procedure or affects substantive rights. Under the pre-amended provision, an aggrieved assessee was entitled to file an appeal, provided he paid admitted tax. By an amendment to the statute, it was made necessary that strict proof of payment of taxes, in respect of which the appeal has been preferred, has to accompany the appeal, and in that context, the issue arose as to whether the said amendment is retrospective in operation, i.e., whether it affects the right of an assessee, whose assessment proceedings commenced prior to the date of amendment. The Court observed that the right of appeal is not a matter of procedure, but a substantive right; a right vested in a party cannot be taken away by an amendment with retrospective effect, unless it is shown to be retrospectiv....
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....time. In the present scheme of things, the question as to whether further stay needs to be granted or not comes up for review after the expiry of 180 days; if the assessee genuinely deserves it, and moves a fresh stay petition in that regard Appellate Tribunal is still vested with the power to grant stay from time to time, till the disposal of appeal. Under these circumstances, we hold that the second proviso does not affect the substantive right of appeal conferred on an assessee. Therefore, the decision of the Apex Court in Hoosein Kasam Dada (India) Ltd.'s case has no application to the facts of the case. 10. In the case of K.M.S. Lakshmanier & Sons (P.) Ltd. v. STAT [1967] 20 STC 103 the Hon'ble High Court of Andhra Pradesh held that requirements of payment of tax is an onerous condition, which may, in a given case, prevent the exercise of right of appeal, and thus, the amendment cannot be made retrospective, except by express words or necessary intendment. Here also, the issue touches upon the vested right of appeal, and thus, the Court held that the condition of compulsory payment of tax is not a matter of procedure. Thus, this decision of the Hon'ble Andhra Pradesh High C....