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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
Before: SHRI B. R. BASKARAN, AM & SHRI PAWAN SINGH, JM
आदेश / O R D E R
Per Pawan Singh, JM:
This appeal u/s 253 of Income Tax Act ( Act) is directed by assessee against the order of Commissioner of Income Tax Appeals -34 dated 10 June 2015 for AY 2012-13.
The facts in brief, leading to file the present appeal are that assessee filed return of income for relevant assessment year on 22 September 2012, declaring total income at Rs.72,42,800/-. The case was selected for scrutiny and the assessment under section 143( 3) was completed on 24th March 2015, assessing the total income of assessee at Rs. 2,13,35,922/-. The AO while framing assessment made the addition of Rs.1,56,56,922/- as income from AOP, against the assessee on protective basis. On the basis of addition a demand of Rs. 61,72,820/- was raised against the assessee. The assessee vide his application dated 30th April 2015, requested the AO for stay of demand. The AO vide its order dated 19 May 2015, rejected the said application (Thus declined the stay of demand). The assessee
And SA No. 234/M/2015 Daulat Luthria AY 2012-13 again approached the AO vide his application dated 20th May 2015 and pray for reconsideration of the stay application, however, the same was again rejected by AO vide order dated 3 June 2015. The assessee thereafter approached Commissioner of income tax Appeals for stay of demand vide his application dated 6 June 2015. However, the Learned CIT(A) vide order dated 10th June 2015, directed the assessee to approach the AO for stay of demand. Aggrieved by the order of CIT(A) the assessee has filed the present appeal before us, for stay of demand against the assessee till the disposal of appeal of assessee pending before landed CIT(A) . In the appeal, the assessee has raised following grounds of appeal; (1). On the facts and circumstances of the case and law, Learned CIT a erred in not granting this day of disputed demand of Rs. 6 172820/- (2). On the facts and circumstances of the case and law, the landed CIT a failed to appreciate that the Learned CIT have inherent power to grant the stay. (3). On the facts and circumstances of the case and law. Landed CIT a erred in directing to approach the assessing officer 40/demand when he himself have power to grant the stay of demand.
3. We have heard the ld AR of the assessee and ld DR for the Revenue and gone through the assessment order dated 24th March 2015 and the order impugned in the present appeal. The ld AR of the assessee argued that the present appeal is maintainable before this Tribunal in view of the ratio of law laid down by Hon’ble Apex Court in case of I TO Versus MK Mohammad Kunhi, 71 ITR 815 (SC), wherein it was held that the Commissioner of income Tax (Appeals) has inherent power to stay the demand when appeal is pending before him for disposal. The Ld AR of the assessee further argued that the Learned CIT(A) instead of giving opportunity of hearing and considering the facts in the application for a stay of demand, ordered the assessee to approach the assessing officer. The AO had already rejected the stay application filed before him. The Learned AR of assessee further relied upon the decision of Delhi Tribunal in Employees Provident Fund Organization Versus ACIT (TDS) in to 1768/Del/2015. Ld AR of the assessee further argued that the assessee has good prima facie case on merit and is likely to succeed in appeal. The appellant/ assessee would suffer irreparable loss and injury, if the demand is not a stayed till the disposal of the appeal pending before Learned Commissioner of Income Tax (Appeals). Even otherwise the addition was made in the assessment order only on protective basis. On the other hand ld CIT - DR argued that the appeal is not maintainable before the Tribunal as the order passed by ld CIT(A) is not an order under section 250 of the Income Tax Act. The said order was passed by CIT(A) under his administrative capacity. 2
And SA No. 234/M/2015 Daulat Luthria AY 2012-13
We have considered the rival contention of the parties and further gone through the material available on record. The AO while framing assessment made the addition of Rs.1,56,56,922/- against the assessee as income from AOP, on protective basis. The assessee has already filed appeal before the Commissioner of income tax (Appeals) on 24 April 2015, which has not yet been decided. The AO has raised the demand of Rs. 61,72,820/-. The application moved by assessee before the first appellate authority, for stay of the impugned demand, where the appeal of the assessee is pending, however, no stay order was passed on the application of assessee. The AO already rejected the stay application moved by assessee not only once but twice. The ld AR for the assessee relied upon the decision of Delhi Tribunal in Employee Provident Fund Organization Versus ACIT (TDS) (supra) which is in favour of assessee. However, third Member bench of Lucknow Tribunal in Rajya Krishi Utpadan Mandi Parishad Versus ITO in 144/LKW/2009 (2016) 158 ITD 71, considering the identical question held as under:-
“17. From the above decision to would be clear that the power to grant a stay of collection of tax is an inherent and incidental power of the appellate authority for the effective exercise of appellate powers. Since in the instant case the regular appeal of the assessee is pending before ld CIT(A) i.e. first appellate authority at the time of passing of order on stay petition so, he has power to grant a stay. However, no appeal is pending before the Tribunal and there is no specific express power with the Tribunal to entertain and disposed of such appeals, so the Tribunal cannot grant this day of collection of tax by entertaining the appeals against the order of learned CIT(A) for stay of recovery. In other words, the Tribunal cannot interfere with the order passed by ld CIT(A) in his inherent and incidental power of its appellate jurisdiction.
Therefore, in my considered view, the appeal filed by the assessee against the order of CIT(A) passed on applications of the assessee for grant of stay of tax demand, are not maintainable. Therefore, appeals against such orders cannot be admitted and that such, and liable to be dismissed.”
Considering the decision of third Member in Rajya Krishi Utpadan Mandi Parishad(supra) of Coordinate bench of Lucknow, which is a binding precedent on us, we hold that appeal of the assessee is not maintainable before this Tribunal. Hence the appeal filed by the assessee is dismissed. However, keeping in view the Principle of Natural Justice, we hereby direct the ld CIT(A) to decide the stay application of the assessee afresh in accordance with the decision of Hon’ble Apex Court in ITO versus MK Mohammad Kunhi (1969) 71 ITR 815 (SC).
In the result appeal of the assessee is dismissed.
And SA No. 234/M/2015 Daulat Luthria AY 2012-13 SA No.234/M/2015 7. As we have dismissed the appeal of the assessee holding that appeal of the assessee for grant of stay of tax demand are not maintainable. Therefore the application for stay is also not maintainable and thus the same is dismissed.
In the result, appeal of the assessee as well as the application for stay is dismissed. However, the learned CIT(A) is directed to comply the direction contained in sub para of para 5 of this order within week of receipt of this order.
Order announced in the open court on 14th day of October 2 016.
Sd/- Sd/- (B. R. Baskaran) (Pawan Singh) लेखा सद� / Accountant Member �ाियक सद� / Judicial Member मुंबई Mumbai; िदनांक Dated : 14.10.2016 आदेश की �ितिलिप अ�ेिषत/Copy of the Order forwarded to : अपीलाथ� / The Appellant 1. ��थ� / The Respondent 2. 3. आयकर आयु�(अपील) / The CIT(A) आयकर आयु� / CIT - concerned 4. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai 5. 6. गाड� फाईल / Guard File आदेशानुसार/ BY ORDER,