TaxTMI 
TaxTMI 
TaxTMI 
2016 (3) TMI 1302
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....ed to argue the appeal itself instead of arguing the Stay Petition. Accordingly Early hearing was granted directing the Registry to fix the appeal alongwith the stay petition on 29/03/2016. The typed copy of the handwritten order sheet entry made out in the Court; Read out to the parties in the Court and thereafter signed in the Court is reproduced hereunder for ready reference wherein considering the submissions of the parties the following directions were given:- Order Sheet Dated :28th March 2016 in S.A 198/Del/2016 "Heard Mr. R Jain, Adv. And Mr. Anshuman Sharma, Adv. for the Assessee. Mr. Ravi Jain, CIT DR for the Revenue. Mr. Jain, CIT DR going though the record available states that in the limited time available to the Revenue he would want to point out that the Stay Petition is not maintainable as the Stay petition and the affidavit is not in terms of section 140 of the Income Tax Act, 1961 as it is not signed by the authorized person. Ld. AR states that the said person is Authorized in terms of the Resolution of the Board placed at page 434 of the Appeal memo. Considering the submissions of the parties the AO would be at liberty to proceed with the hearings fixed if any....
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....today. Read out in the tribunal. Typed copy to be made available to the parties. Sd/- (P.MAHARISHI) ACCOUNTANT MEMBER Sd/- (DIVA SINGH) JUDICIAL MEMBER 4. For the sake of completeness Ground No.1. 6 addressed by the Ld. A.R in ITA1462/Del/2016 is also reproduced hereunder for ready reference, wherein for the record the limited prayer of the Ld. A.R. was that in order to address the deficiencies in the impugned order the issues may be sent back to the Ld. CIT, Hissar for adjudicating the same de-novo:- 1.6. "That on the facts and circumstances of the case, the impugned order dated 27.03.2015 passed by the CIT without affording reasonable opportunity of being heard to the appellant in violation of principles of natural justice, is illegal and bad in law." 5. Since the appeal was adjourned on the request of the Revenue, the Ld. A.R. made a prayer after advancing arguments in appeal that since department is being accommodated protection granted to the assessee may be continued. Supporting the prayer the Ld A.R. stated that he was ready to give his oral undertaking that in case the Tribunal was to stay the passing of the consequential assessment order the assessee would n....
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.... an appeal, Section 254(1) of the Income tax act 1961confers upon the ITAT the omnibus power "to pass such orders thereon as it thinks fit". Reference in this regard may be made to the following relevant extracts of order dated 10th of April 2013 passed in MA No.32/Del/2013 in ITA No. 5797/Del/2012 in DCIT v Motorola Solutions India Pvt. Ltd. (2013) 40 taxmann.com 151 (Del- Trib.) 147 ITD 178 (Del.):- "13.2 Thus, on a consideration of the Section 254 and 255 of the Income Tax Act and Section 131 of the Act, we are of the considered view that the Tribunal has the power to pass such appropriate orders in the facts and circumstances of each case to maintain judicial balance between the parties. As such Section 254 of the Act would include the power to grant stay which is incidental and ancillary and while exercising the powers to grant stay, the Tribunal would be have all the powers to grant stay in the nature of prohibitory, mandatory or directory to order for refund of the amount recovered by the revenue in appropriate cases where such directions are warranted. 13.3. Section 151 of the Code of Civil Procedure reads as under: "Nothing contained in this code shall be deemed to li....
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....ourt in Pepsi Foods P. Ltd v. Assistant Commissioner of Income Tax and another (2015) 376 ITR 87 (Del). Reference, as relevant for the present case, may be made to para 13 and 18 which reads as under: "13....Grant of stay by the Tribunal is not a matter of right, but is decided by a speaking order, recording prima facie view on the merits. In case there is an error or the Tribunal has erred in granting stay, Revenue is not without remedy and can approach the High Court in accordance with law...." "18... it is evident that the power to grant a stay is incidental or ancillary to the appellate jurisdiction of the Tribunal. It is also clear that the power of stay exercised by the Tribunal is not likely to be exercised in a routine way or as a matter of course in view of the special nature of taxation and revenue laws and it is only when a strong prima facie case is made out that the Tribunal would consider whether to stay the recovery proceedings and on what conditions. The stay is also granted in deserving and appropriate cases where the Tribunal is satisfied that the entire purpose of the appeal would be frustrated or rendered nugatory by allowing the recovery proceedings to conti....
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.... that whereas the assessee has made out a prima-facie case for grant of stay, the departmental objection that the ITAT does not have the power to grant stay is misplaced. We find support from the decision of the Hon'ble Delhi High Court dated 3rd of August 2012 in WP (C) No.4684/2010 in the case of CIT, Central-II vs ITAT &Ors. We further find support from the decision of the Hon'ble Punjab and Haryana High Court rendered in Civil Writ Petition No. 15239 of 2015 dated 31st of October 2015 in the case of Pr. Commissioner of Income Tax, Hissar vs. ITAT, Delhi Bench which would be the jurisdictional High Court for the assessee .Cognizance of the aforesaid decision of the Hon'ble Delhi High Court has been taken by the Hon'ble Punjab and Haryana High Court in their decision. A perusal of the same would show that considering the Departmental request for quashing the order dated 25/03/2015 of the ITAT by way of Writ of Certiorari, the Hon'ble High considering the aforesaid order of the ITAT concluded that the Tribunal was neither the Appellate nor the Revisional Authority in a case where prosecution was to be launched. Thus where on facts the issue of prosecution under section 276C (1) co....