TaxTMI 
TaxTMI 
2016 (4) TMI 391
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.... petition. On considering the record of the Court proceedings in ITA No.750/Del/2015 it was found that the position as summarized in page 5 of the petition and as submitted by the Ld.AR was found to be incorrect as contrary to the submissions the record showed that on two specific dates i.e 14/12/2015 and 17/02/2016 the adjournments were sought by the Ld.AR. The order sheets specifically records the fact that adjourned on the "written application of the Ld.AR." The Ld. AR was required to clarify as in terms of the afore-said recording in the order sheet prima facie the assessee's case could not be said to be covered under the umbrella of the decision rendered by the Jurisdictional High Court in the case of Pepsi Foods Pvt Ltd. (cited supra). 3. The Ld.AR submitted that the adjournments had been made due to the peculiar situation which arose where the firm of the authorized representative engaged to argue by the assessee could not appear due to "conflict of interest" which arose as the presiding Member's son was professionally associated with the Ld. AR's Firm. The said submission was also found to be incorrect as the presiding Member on 14.12.2015 as per record does no....
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.... circumstances:- "The captioned appeal is fixed for hearing before the Hon'ble I-1 Bench of the Tribunal on 17th February 2016. In this regard, it is submitted that Mr. Sukhsagar Syal, S/o-Shri R.S.Syal (Hon'ble Accountant Member), is professionally associated with out firm, M/s G.C.Srivastava and Associates (Advocates), which has been engaged to represent the assessee in the captioned matter. In such circumstances, we are unable to argue the aforesaid matter and an adjournment is sought." 4.3. It was submitted that since the Ld.AR was not aware of the re-constitution of the Bench the afore-said adjournment petition remained on record. Thus caught by surprise it could not be taken back. In those circumstances, the re- constituted Bench adjourned the Stay Granted Appeal. We find from the record the following order on the order sheet:- 14 December 2015: "As per the written application of the Ld.AR, Hearing of this case is adjourned to 07.01.2016. Parties informed. Sd/- (Kuldip SIngh) Sd/- (Shamim Yahya) 5. Considering the record and the submissions, we find that the order sheet entries and the sequence of events now placed on record in regard to the dates 14.1....
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....er 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, if 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." 7.1. A plain reading of the same shows that the Tribunal is vested with the power to grant stay initially for a period of six months in terms of the first proviso to sub-section (2A) of section 254. In terms of the second proviso, on an application by the assessee the stay may be extended by the Tribunal for a further period of another six months on being satisfied that the delay in disposing is not attributable to the ass....
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....bbing together of 'well behaved' assessees and those who cause delay in the appeal proceedings is itself violative of Article 14 of the Constitution and has no nexus or connection with the object sought to be achieved. The said expression introduced by the Finance Act, 2008 is, therefore, struck down as being violative of Article 14 of the Constitution of India. This would revert us to the position of law as interpreted by the Bombay High Court in Narang Overseas (supra), with which we are in full agreement. Consequently, we hold that, where the delay in disposing of the appeal is not attributable to the assessee, the Tribunal has the power to grant extension of stay beyond 365 days in deserving cases. The writ petitions are allowed as above. (emphasis provided) 7.2. Thus on considering the judicial precedent, we find that there is no impediment to the Tribunal to extend stay for a period beyond 365 days in deserving cases. Reliance may also be placed on order dated 01.02.2016 in SA No.-18/Del/2016 in ITA No.414/Del/2015 in the case M/s Jaypee Infratech Ltd.vs ACIT. In the said background reverting to the facts of the present case we find that though on a bare reading of t....
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.... demanded and penalty levied is made out, is compelled to pay the duty demanded and penalty levied, if the appeal is not decided within 180 days. The assessee has no control in respect of matters pending before the Tribunal ; in the matter of availability of infrastructure ; the members of the Tribunal and the workload. Therefore, for the reason that the Tribunal is not able to decide appeal within 180 days, the vacation of stay is a harsh and onerous and unreasonable condition. The condition of vacation of stay for the inability of the Tribunal to decide the appeal is burdening the assessee for no fault of his. Such 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 Co. Ltd. and Nand Lal 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 dow....