TaxTMI 
TaxTMI 
2021 (4) TMI 903
X X X X Extracts X X X X
X X X X Extracts X X X X
....us take up the stay petition in SA No. 164/Mum/2020 for AY 2009-10. We find that this SA filed by the assessee is for seeking extension of stay already granted by this Tribunal vide its order dated 07.10.2019 wherein this Tribunal had extended the stay for a period of 180 days from 07.10.2019 or till the disposal of the appeal by this Tribunal, whichever is earlier. Thereafter, the stay was extended from time to time by this Tribunal pursuant to the blanket stay order passed by Hon'ble Bombay High Court upto January 2021. 3. We find from the chronology of events given vide page nos. 13 to 17 of the stay application preferred by the assessee, that the delay in non-disposal of the appeal was not due to the reason attributable to the ass....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... request made by ld. Departmental Representative (DR). 7. We find that total taxes paid by the assessee for this year is less than 20% of the total demand raised thereon ad hence the applicability of mandate of section 254(2A) comes into operation. We find that the ld. Authorized Representative (AR) made various propositions to drive home the point that amended proviso to section 254(2A) of the Act could be made applicable only for stay application filed for the first time after 01.04.2020 and the same cannot be made applicable for extension of stay. For the sake of convenience, the provisions of section 254(2A) duly amended or reproduced here-in-below: (2A) In every appeal, the Appellate Tribunal, where it is possible, may hear....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he 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. 8. We find that the ld. DR had filed written submissions which were sent in email on 01.04.2021 wherein he had vehemently argued that the law mandates payment of 20% of the total demand as a pre-condition for granting stay of demand by the Tribunal after the ame....
X X X X Extracts X X X X
X X X X Extracts X X X X
....so on the recent decision of Hon'ble Supreme Court in the case reported in TS-236-SC-2021, wherein the Hon'ble Supreme Court held that the 3rd proviso to section 254(2A) of the Act that provides for automatic vacation of stay beyond 365 days even if the assessee was not responsible for delay in hearing of the appeal, is arbitrary and discriminatory and hence struck down as violation of Article-14 of the Constitution of India. 10. We find that the Hon'ble Supreme Court read down the 3rd proviso to section 254(2A) as follows: "Common order of stay shall stand vacated after the expiry of the period..................only if the delay in disposing of the appeal is attributable to the assessee" 11. We also find that the ld. DR in i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ions made by ld. Assessing Officer (AO) for this AY is with regard to disallowance made under section 14A of the Act to the tune of Rs. 357.23 crores. We find that assessee had pleaded that no exempt income has been earned by it during the year and accordingly by placing reliance on various decisions of various High Courts, it had pleaded that no disallowance under section 14A of the Act could be made. 15. We find that the assessee had indeed made a prima facie case in this regard and once this disallowance under section 14A of the Act is ignored, the net result of other remaining additions would still only result in assessed loss and hence there is no requirement of payment of any taxes for this AY. On this reason itself, assessee is en....