TaxTMI 
TaxTMI 
2015 (8) TMI 696
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....nterpreted by a Division Bench of this Court in CIT Vs. Maruti Suzuki (India) Ltd. 2014 (362) ITR 215 to hold that the Income Tax Appellate Tribunal did not have power and jurisdiction to extend an interim stay order beyond 365 days, even if the assessee was not at fault. 3. A Division Bench of this Court while hearing arguments in CEAC 27/2015, Commissioner of Central Excise, Delhi Vs. Brew Force Machine Pvt. Ltd., prima facie, felt that the observations in Haldiram India Pvt. Ltd. (supra) may not be correct and appropriate as Section 35C of the Central Excise Act, 1944 (CE Act) is not identically worded and pari materia to the third proviso to Section 254(2A) of the IT Act, as substituted by Finance Act, 2008 with effect from 1st October, 2008. The amendments/substitution by the Finance Act, 2008 had not been incorporated and enacted in Section 35C (2A) of the CE Act. The reference order takes on record the legal ratio of the judgment dated 19th May, 2015 in W.P.(C) 1334/2015, Pepsi Foods Pvt. Ltd. Vs. Assistant Commissioner of Income Tax and the judgment of the Bombay High Court in Narang Overseas P. Ltd. Vs. Income Tax Appellate Tribunal, Mumbai 2007 (217) ELT 497 (Bom.) to ....
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....n the order of stay, the Appellate Tribunal may, on an application made in this behalf by the assessee and on being satisfied that the delay in disposing of the appeal is not attributable to the assessee, extend the period of stay, or pass an order of stay for a further period or periods as it thinks fit; so, however, that the aggregate of the period originally allowed and the period or periods so extended or allowed shall not, in any case, exceed three hundred and sixty-five days and the Appellate Tribunal shall dispose of the appeal within the period or periods of stay so extended or allowed: Provided also that if such appeal is not so disposed of within the period allowed under the first proviso 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." (emphasis supplied) 5. The difference in the language of the third proviso is apparent and striking. The words "even if the delay in disposing of the appeal is not attributabl....
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....onstitutional Bench in L. Chandra Kumar versus Union of India, (1997) 3 SCC 261. Thus, the High Court in appropriate matters can grant or extend stay even when the tribunal has not been able to dispose of an appeal within 365 days from the date of grant of initial stay. This perhaps appears to be and apparently is the intention of the Parliament. High Court while granting or rejecting the writ petition will examine the factual matrix, record reasons as to who is to be blamed and is responsible for the default and can also issue appropriate directions or orders for expeditious and early disposal of the appeal. The provision will propel and ensure that the tribunal will try and dispose of and decide appeals within 365 days of the grant of stay order. The Bombay High Court in Jethmal Faujimal Soni vs. Income Tax Appellate Tribunal [2011] 333 ITR 96, had occasion to deal with a similar situation and entertained the writ petition. In the said case constitutional validity of the third proviso inserted in Section 254(2A) of the Act by Finance Act, 2008, w.e.f. 1st October, 2008 was challenged It was observed that the proviso enacted a stringent provision as a result of which even if the d....
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....open. However, we find that the ratio of the said decision was acceptable and in accordance with law, as identical and pari materia provision of the CE Act was examined by the Supreme Court in Commissioner of Customs and Central Excise, Ahmedabad v. Kumar Cotton Mills Pvt. Ltd. (2005) 180 ELT 434 (SC) and approving the decision of the Larger Bench of the Tribunal in IPCL's case (supra), it was observed as under:- "3. The provision has clearly been made for the purpose of curbing the dilatory tactics of those assesses who, having got an interim order in their favour, seek to continue the interim order by delaying the disposal of the proceedings. Thus, depriving the revenue not only of the benefit of the assessed value but also a decision on points which may have impact on other pending matters. Xxxxx 6. The sub-section which was introduced in terrorem cannot be construed as punishing the assesses for matters which may be completed beyond their control. For example, many of the Tribunals are not constituted and it is not possible for such Tribunals to dispose of matters. Occasionally by reason of other administrative exigencies for which the asessee cannot be held liable....
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.... a condition is onerous and renders the right of appeal as illusory. An order passed by a judicial forum is sought to be annulled for no fault of assessee. Therefore, in terms of judgments in Anant Mills Ltd. and Seth Nandlal cases (supra), such condition of automatic vacation of stay on the expiry of 180 days, has to be read down to mean that after 180 days the Revenue has a right to bring to the notice of the Tribunal the conduct of the assessee in delay or avoiding the decision of appeal, so as to warrant an order of vacation of stay. If the provision is not read down in the manner mentioned above, such condition suffers from illegality rendering the right of appeal as redundant." 10. The third proviso to section 254(2A) after the amendment in 2008 vide Finance Ac, 2008 for the sake of convenience, is again reproduced below: "Provided also that if such appeal is not so disposed of within the period allowed under the first proviso 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 d....