TaxTMI 
TaxTMI 
2015 (5) TMI 27
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....holding that even in a case where the period of 365 days has passed from the date of initial grant of stay but the appeal could not be disposed of for reasons not attributable to the appellant/assessee (in whose favour the stay was granted) and where the Tribunal is satisfied that the appellant/assessee was ready and willing for disposal of the appeal and/or had not indulged in any protractive strategies, extension of stay could be granted (beyond the period of 365 days) by passing a speaking order disclosing the satisfaction of the Tribunal as to absence of any delay/protractive stratagems by the appellant/assessee resulting in non disposal of the appeal or that the appeal could not be disposed of on account of pendency of several appeals or other reasons attributable to the structure and context of the Tribunal or other appropriate reasons. In accordance with the observations and directions set out in para 6 of the judgment in Small Industries Development Bank of India, an assessee/appellant in whose favour an order of stay earlier granted stood vacated on expiry of 180 days or 365 days as the case may be, may present an application seeking extension of stay by pleading the neces....
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....ension of the interim order till the appeal is decided and further granting liberty to the assessees whose interim order stood vacated because of the expiry of the outer limit of 180 days/365 days, to make a fresh interim stay application, is bad. It is further submitted that the order of the Tribunal is in teeth of the mandatory statutory provisions, therefore, unsustainable in the eyes of law. On behalf of the Income Tax department similar stand has been taken and it is contended that in view of the language of Section 254(2A) of the Act, 1961, no relief can be granted to the petitioner. We may record that this High Court has been receiving appeals/ writ petitions on identical issue namely the interim order granted in favour of the assessee having been vacated/extended by the Tribunal after expiry of the outer limit of the prescribed period of 365 days. In cases where the stay order has been vacated the assessee has approached this Court while in other cases where the Tribunal has extended the interim order beyond 365 days, the department has challenged the order of the Tribunal before this Court. This Court in number of cases has disposed of such Excise Appeals/Writ ....
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....iod of one hundred and eighty days from the date of such order. Provided further that if such appeal is not disposed of within the period specified in the first proviso, the stay order shall, on the expiry of that period, stand vacated." We may also take note of the third proviso which has been added to Section 35-C(2A) of the Act, 1944 vide Section 98 of the Finance Act, 2013 which reads as follows : "Provided also that where such appeal is not disposed of within the period specified in the first proviso, the Appellate Tribunal may, on an application made in this behalf by a party and on being satisfied that the delay in disposing of the appeal is not attributable to such party, extend the period of stay to such further period, as it thinks fit, not exceeding one hundred and eighty-five days, and in case the appeal is not so disposed of within the total period of three hundred and sixty-five days from the date of order referred to in the first proviso, the stay order shall, on the expiry of the said period, stand vacated." Section 254(2A) of the Act, 1961 reads as follows : "In every appeal, the Appellate Tribunal, where it is possible, may hear and decide such appe....
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.... where an interim order has been granted by the Tribunal, the appeal be considered and decided within 180 days at the first instance and in any case within 365 days finally. In case the appeal is not decided by the Appellate Tribunal for whatever reason, the stay order shall stand discharge even if the assessee is not at fault. The aforesaid two sections contain two stipulations : (a) Time limit has been fixed for the Tribunal to decide an appeal in which an interim order has been granted i.e. 180 days at the first instance and in any case within 365 days. (b) In case the appeal is not so decided within the time limit fixed, the interim order granted by the Tribunal shall stand vacated, even if delay in disposing of the appeal is not attributable to the assessee. In the lis before the Tribunal there are two parties namely the assessee and the department. Over the Tribunal the assessee or the department has no control. But if the Tribunal fails to perform its part of obligation within the time fixed under the aforesaid two Sections, for whatever reason it may and not attributable to the assessee, it is the assessee alone who has been made to suffer. Choosing of one party....
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.... no control over the performance of the duty, such provision should be treated as a directory one. Where however, a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another, when such act is not done in that manner, the former has to be regarded as a mandatory one." Maxwell on "Interpretation of Statutes", 10th Ed. p. 381, observed as under : "On the other hand, where the prescription of a statute relates to the performance of a public duty and where the invalidation of the act done in neglect of them would work serious general inconvenience or injustice to persons who have no control over who have been entrusted with the duty without promoting the social aim of the legislation, such prescription seems to be generally understood as mere instruction for the guidance and governance of those on whom the duty is imposed, or, in other words, as directory only. The neglect of them may be penal in deed, but it does not affect the validity of the act done in disregard of them." What follows is that if the law requires certain thing to be....