2019 (3) TMI 1319

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....ur of assessee on jurisdictional issue. For assessment years 2009-10, 2010-11 and 2011-12 the issue is pending on merit before the ITAT. Now the learned D.R. stated that as per the 3rd proviso to Section 254(2A) of the Act the stay beyond 365 days cannot be granted by the Tribunal and the Tribunal has no power to grant stay beyond 356 days. Hence he requested for vacation of stay after the expiry of this period, i.e. 365 days. He stated that the Tribunal has granted stay in this case vide orders as under: - Sl. No. Stay Application No. Date of Order I 135/Mum/2016 18.03.2016 Ii 327/Mum/2016 16.09.2016 Iii 168/Mum/2017 17.03.2017 Iv 415/Mum/2017 29.09.2017 V 247/Mum/2018 06.04.2018 vi 543/Mum/2018 04.12.2018 When asked by the Bench the learned D.R. could not point out any mistake apparent from record in the order of the Tribunal granting stay, finally extending the stay vide order dated 04.12.2018. He only requested for vacation of stay in view of the 3rd proviso to section 254(2A). Further the learned D.R. relied on the recent decision of the Hon'ble Supreme Court in the case of Asian Resurfacing of Road Agency P....

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....od 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." The learned counsel for the assessee, in view of this third proviso referred to in the decision of the Hon'ble Delhi High Court in the case of Pepsi Foods (P) Ltd. (2015) 376 ITR 87 (Del) wherein the Hon'ble Delhi High Court has struck down the expression, "even if the delay in disposing of the appeal is not attributable to the assessee" as brought in by the Legislature in the said proviso. The learned counsel for the assessee referred to the relevant para 24 of the order in the case of Pepsi Foods (P) Ltd. (supra) which reads as under: - 24. Furthermore, the petitioners are correct in their submission that unequals have been treated equally. Assessees who, after having obtained stay orders and by their conduct delay the appeal proceedings, have been treated in the same manner in which assessees, who have not, in any way, delayed the proceedings in the appeal. The two class....

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....itional words added in the substitute third proviso to Section 254(2A) of the Act has been struck down by the Delhi High Court in "Pepsi Foods () Ltd. v. Asstt. CIT [2015] 376 ITR 87/57 taxmann.com 337." The learned counsel for the assessee also referred to the decision of the Hon'ble Bombay High Court in the case of Narang Overseas (P) Ltd. vs. ITAT (2007) 295 ITR 22 (Bom), which was also considered by the Hon'ble Bombay High Court in the case of Tata Teleservices (Maharashtra) Ltd.  (supra) in which it was held that although the Tribunal is not a Court, but it exercises judicial powers and that the Tribunal's powers to deal with appeals are of the widest amplitude and have in some cases been held similar to and identical with the powers of an appellate Court under the Civil Procedure Code, 1908. As regards to the latest decision of the Hon'ble Supreme Court in the case of Asian Resurfacing of Road Agency P. Ltd. (supra) the learned counsel for the assessee relied on the Hon'ble Jurisdictional High Court decision in the case of Oracle Financial Services Pvt. Ltd. vs. DCIT in Writ Petition No. 542 of 2019 dated 28.02. 2019 wherein the judgement of ....

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....t years 2009-10, 2010-11 and Appeal for A.Y. 2011-12 was fixed for hearing on various dated but the matter was adjourned on account of want of time or any other reason. The assessee cannot be faulted at this stage or non-disposal of appeal cannot be attributed to the assessee. In terms of this the stay was extended for further 180 days from date of order, i.e. 04.12.2018 and the appeal for A.Y. 2011-12 was fixed for hearing on 31.01.2019. This appeal was adjourned to 03.04.2019 due to paucity of time as the appeal for A.Y. 2009-10 was head on that very day and the order is reserved and awaited as informed by the learned counsel for the assessee. We have gone through the decision of the Hon'ble Delhi High Court in the case Pepsi Food (P) Ltd. (supra) and conscious of the fact that the Hon'ble Delhi High Court has struck down the addition of expression by virtue of Finance Act, 2008 by holding the same as violative of non-discriminatory clause of Article 14 of the Constitution of India. The said expression was introduced by Finance Act, 2008 and the expression was that, "even if the delay in disposing of the appeal is not attributable to the assessee", the same was struck dow....