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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Harsha Devani and G.R. Udhwani, JJ.
Income Tax Officer – Appellant
Vs.
Anil Girishbhai Darji – Respondent
Special Civil Application Nos. 2577, 2578 and 2579 of 2016
Decided On : 15-03-2016
Income Tax - Stay of Demand - Section 254(2A) of the Income Tax Act, 1961 - Summary: The court upheld the Tribunal's decision to extend the stay of demand beyond 365 days from the date of initial stay, based on the satisfaction of compliance with payment conditions and non-attribution of appeal delay to the assessee.
Fact of the Case:
The petitions challenged the Tribunal's order extending the stay of demands in favor of the respondent-assessee beyond 365 days, citing the provisions of section 254 of the Income Tax Act, 1961.
Finding of the Court:
The court found that the Tribunal's extension of the stay of demand beyond 365 days was justified, as it was based on the satisfaction of compliance with payment conditions and the non-attribution of appeal delay to the assessee.
Issues: The main issue was whether the Tribunal was justified in extending the stay of demand beyond the period prescribed under the third proviso to sub-section (2A) of section 254 of the Act.
Ratio Decidendi: The court held that the Tribunal has the power to extend the stay of demand beyond a period of 365 days, subject to subjective satisfaction and non-attribution of appeal delay to the assessee.
Final Decision: The petitions were dismissed, and the Tribunal was requested to dispose of the appeals as expeditiously as possible.
Harsha Devani, J.
1. These petitions under Articles 226 and 227 of the Constitution of India are directed against the common order dated 18.09.2015 passed by the Income Tax Appellate Tribunal, Ahmedabad in SA No. 97/Ahd/2015, SA No. 98/Ahd/2015 and SA No. 99/Ahd/2015 filed in the respective appeals for the assessment years 2007-08, 2008-09 and 2010-11 respectively, whereby the Tribunal has extended the stay of demands in favour of the respondent - assessee beyond a period of 365 days.
2. Since all these petitions arise out of a common order of the Tribunal, and the parties are also common, the same were taken up for hearing together and are disposed of by this common judgment.
3. For the sake of convenience, reference is made to the facts as appearing in Special Civil Application No. 2577 of 2016. The respondent - assessee filed his return of income for assessment year 2007-08 declaring total income of Rs. 96,910/-. The Assessing Officer framed assessment under section 143(3) read with section 153C of the Income Tax Act, 1961 (hereinafter referred to as "the Act") on 28.12.2011 assessing the total income of the assessee at Rs. 57,58,111/- as against the returned income. The assessee carried the matter in appeal before the Commissioner of Income Tax (Appeals), who by order dated 19.04.2013, confirmed the demand. Being aggrieved, the assessee carried the matter in further appeal before the Tribunal in ITA (SS) A No. 258/Ahd/2013. The assessee also preferred Stay Petition No. 64/Ahd/2014 in the said tax appeal before the Tribunal. In the other two petitions, the respondent-assessee filed identical tax appeals for assessment years 2008-09 and 2010-11 and all the three stay petitions were decided by a common order dated 13.08.2014 of the Tribunal whereby, the stay against the demand was granted in favour of the assessee. While granting stay of the outstanding demand of Rs. 1,80,50,640/-, the Tribunal imposed a condition that the assessee should deposit an amount of Rs. 2,00,000/- in the Government account by 31.08.2014 and make payment of Rs. 50,000/- every month till the disposal of assessee's appeals in IT (SS) A No. 258, 259 and 260/Ahd/2013 for assessment years 2007-08, 2008-09 and 2010-11 respectively, or the expiry of six months from the date of the order, whichever is earlier. In terms of the said order, the stay was limited till the disposal of the assessee's appeals or the expiry of six months from the date of the order, whichever was earlier. Since the appeals were not decided within such period, the respondent - assessee moved other applications being Application No. 21 to 23/Ahd/2015 before the Tribunal seeking extension of the stay granted vide order dated 13.08.2014. By an order dated 13.03.2015, the stay granted by earlier order dated 13.08.2014 was extended subject to further payment of Rs. 50,000/- per month till the disposal of assessee's appeal or the expiry of six months, whichever is earlier. Since the appeals were not disposed of within the time stipulated in the stay order, the assessee, after the expiry of six months, moved stay applications for the third time being SA No. 97, 98 and 99/Ahd/2015 seeking further extension of the stay of demand. By the impugned order dated 18.09.2015, the Tribunal extended the stay of demand in favour of the assessee subject to payment of Rs. 50,000/- per month (as stipulated in its earlier order) till the disposal of appeal or the expiry of six months, whichever is earlier. Being aggrieved, the petitioner filed the present petitions.
4. Mr. Varun Patel, learned standing counsel for the petitioner, invited the attention of the court to the provisions of section 254 of the Act, and more particularly, to the third proviso to section 254(2A) thereof, which provides 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 s
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