TaxTMI 
TaxTMI 
2016 (4) TMI 387
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.... fresh hearing. Thus it was submitted that the hearing has not concluded in the stipulated period of one year on account of no fault of the assessee. 3. Mr. A.Govil, CIT DR appearing on behalf of the Revenue considering the facts and submissions on record, had no objection if the stay is extended. 4. We have heard the rival submissions and perused the material available on record. In the facts of the present case, we are called upon to decide whether in the peculiar facts and circumstances of the case, stay beyond a period of 365 days can be granted to the assessee or not. It is evident from record that stay for a period of one year i.e. 365 days has already been granted by the ITAT. In the circumstances, we deem it appropriate to extract the relevant provisions of the income Tax Act, 1961 for ready-reference:- "254. Orders of Appellate Tribunal - (1) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. (2A) In every appeal, the Appellate Tribunal, where it is possible, may hear and decide such appeal within a period of four years from the end of the financial year in which such appeal....
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....uzuki India [2014] 44 taxman.com.166 (Del.) it was held that the Division Bench of the High Court in the case of Maruti Suzuki's was not called upon to examine the Constitutional validity of the third proviso to Section 254(2A) of the said Act and the said issue had been left open. Thus examining the amendment carried out by the Finance Act, 2008 in the third proviso which introduced the words "even if the delay in disposing of the appeal is not attributable to the assessee" the Jurisdictional High Court held that the Legislature created a "hostile discrimination" against those assessees who are law abiding and did not cause any delay in their respective appeals by putting them in the same category as those who have delayed the hearing after having obtained the stay. Holding the Amendment carried out by the Finance Act 2008 as violating the non-discrimination clause of Article 14 of the Constitution of India, the third proviso was struck down and the second proviso was read down. For ready-reference, para 24 of the decision is reproduced hereunder:- "24. Furthermore, the petitioners are correct in their submission that unequals have been treated equally. Assessees who, after havin....
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....gh on a bare reading of the recordings made in the order sheet by the Co-ordinate Bench on different dates it is borne out that the adjournments have been moved by the Ld.AR however, when considering the circumstances which necessitated the Ld.AR to move the adjournment petitions, we are of the view that the reasons justifying such an action cannot be faulted with and have to be accepted. In the circumstances, we find where the conduct of the Ld.AR was guided by judicial propriety, we have no hesitation in holding that the adjournments moved on behalf of the assessee could not be considered to be an act of delaying the disposal of appeals or to drag out the hearing after having obtained the stay. We find that more or less factually similar position was considered by the Hon'ble Punjab & Haryana High Court in PML Industries Ltd. vs CCE [2013] 22 GSTR 83 (P&H) which was relied upon by the petitioners before the Hon'ble Delhi High Court in Pepsi Foods Pvt.Ltd. (cited supra) in para 20. The same is extracted hereunder:- 20. The learned counsel for the petitioners had also referred to a decision of the Division Bench of the Punjab and Haryana High Court in PML Industries Ltd. (supra)....
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....on is not read down in the manner mentioned above, such condition suffers from illegality rendering the right of appeal as redundant . . . Consequently, the second proviso in sub-section (2A) of section 35C is ordered to be read down to mean that after 180 days, the Revenue has a right to seek vacation of stay on proof of the fact that the assessee is the one, who is defaulted or taken steps to delay the ultimate decision." The said court read down the provision in question in much the same manner as did the Bombay High Court in the case of Narang Overseas (supra). The object being that, if the provision were to be read strictly, it would render the right of appeal to be illusory and for no fault of the assessee." 4.3. Considering the above legal precedent, we hold that in deserving cases, the ITAT is empowered to extend stay beyond 365 days. We thus proceed to consider the facts of the present case. On considering the facts which are found recorded in the Court proceedings by way of order sheet entries in ITA No.1681/Del/2015, we find that hearing in ITA No.-1681/Del/2015 stood concluded as per record on 03.09.2015. Thereafter, the appeal was "fixed for clarification by th....