ACIT, Faridabad v. Sh. Sanjay Kumar, Faridabad

ITA 2347/DEL/2011 | 2008-2009
Pronouncement Date: 22-07-2011 | Result: Dismissed

Appeal Details

RSA Number 234720114 RSA 2011
Assessee PAN AGCPK0487H
Bench Delhi
Appeal Number ITA 2347/DEL/2011
Duration Of Justice 2 month(s) 12 day(s)
Appellant ACIT, Faridabad
Respondent Sh. Sanjay Kumar, Faridabad
Appeal Type Income Tax Appeal
Pronouncement Date 22-07-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted G
Tribunal Order Date 22-07-2011
Date Of Final Hearing 12-07-2011
Next Hearing Date 12-07-2011
Assessment Year 2008-2009
Appeal Filed On 10-05-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI G.E. VEERABHADRAPPA VICE PRESIDENT & SHRI I.P. BANSAL JUDICIAL MEMBER ITA NO. 2347/DEL/2011 ASSESSMENT YEARS: 2008-09 ACIT VS. SANJAY KUMAR CIRCLE-II B-BLOCK H. NO. 432 CGO COMPLEX NH-IV SECTOR-21A FARIDABAD. FARIDABAD. AGCPK0487H (APPELLANT) (RESPONDENT) APPELLANT BY : MRS. SRUJANI MOHANTY SR. DR RESPONDENT BY : NONE ORDER PER I.P. BANSAL J.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST TH E ORDER PASSED BY LD. CIT(A) DATED 17.3.2011 FOR A.Y. 2008- 09 WHICH IS AN ORDER GRANTING STAY/INSTALLMENT FOR RECOVERY OF DEMAND. 2. GROUNDS OF APPEAL READ AS UNDER: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN FACTS AND LAW IN MAKING ORDER GRANTING STAY AND INSTALLMENTS FOR RECOVERY OF DEMAND THOUGH HE HAS NO POWER U/S ITA NO. 2347/D/2011 2 251 OF THE I.T. ACT 1961 TO CONSIDER OR ADJUDICATE REQUEST FOR STAY OF DEMAND AS ALSO ADMITTED AT PARA 4 OF THE SAID ORDER. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE ORDER PASSED BY THE LD. CIT(A) IS PATENTL Y WRONG AND PERVERSE AS THE ORDER HAS BEEN PASSED BY WRONGLY ASSUMING SUCH POWERS WHICH IN TERMS OF SEC. 253 OF THE I.T. ACT 1961 ARE VESTED WITH T HE HONBLE ITAT A HIGHER APPELLATE BODY. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN FACTS AND LAW IN MAKING ORDER GRANTING STAY AND INSTALLMENTS FOR RECOVERY OF DEMAND WITHOUT ALLOWING ANY OPPORTUNITY TO THE ASSESSING OFFICER IN VIOLATION O F NATURAL JUSTICE. 4. THAT THE APPELLANT CRAVES FOR THE PERMISSION TO ADD DELETE OR AMEND THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING OF APPEAL. 3. RETURN OF INCOME WAS FILED BY THE ASSESSEE AT AN INCOME OF RS. 56 47 640/-. THE ASSESSEE HAS BEEN A SSESSED AT AN INCOME OF RS. 2 10 36 720/- VIDE ASSESSMENT O RDER DATED 30.12.2010 PASSED U/S 143(3) OF THE ACT. 4. THE AFOREMENTIONED ORDER OF THE LD. CIT(A) IS AN IN-TERIM ORDER VIDE WHICH AGAINST THE ASSESSEES REQUEST FOR STAY OF ITA NO. 2347/D/2011 3 OUTSTANDING DEMAND LD. CIT(A) HAS GRANTED THE INST ALLMENTS OF OUTSTANDING DEMANDS OF RS. 10 LAKH EACH BY THE E ND OF THE MONTH BEGINNING WITH THE MONTH OF MARCH 2011 TO AU GUST 2011 AND BALANCED DEMAND OF RS. 9 51 534/- HAS BEEN ORDERED TO BE PAYABLE BY THE END OF SEPTEMBER 2011 . EARLIER THE AO AGAINST THE STAY APPLICATION FILED BY THE AS SESSEE VIDE HIS ORDER DATED 11.2.11 HAD INSTRUCTED THE ASSESSEE TO PAY 50% OF THE DEMAND IMMEDIATELY AND BALANCED DEMAND H E HAS ORDERED TO SAY TILL THE DISPOSAL OF THE APPEAL. HOWEVER IN THE MEAN TIME THE AO HAD ALSO ATTACHED THE BANK ACC OUNT OF THE ASSESSEE. IT IS AGAINST THAT ORDER OF THE AO T HE ASSESSEE HAD SOUGHT STAY FROM THE LD. CIT(A) IN PURSUANCE OF WHICH THE AFOREMENTIONED ORDER HAS BEEN PASSED. LD. CIT(A) H AS NOTICED THAT THE IMPUGNED ASSESSMENT IS A HIGH PITC H ASSESSMENT RAISING THE DEMAND OF RS. 69 51 534/- WH ICH IS MORE THAN THE RETURNED INCOME. THE AO HAS NOT GIVE N SUFFICIENT REASONS TO ORDER THE ASSESSEE TO PAY 50% OF THE DEMAND IMMEDIATELY. WHILE HOLDING SO THE AO HAS NO T EVEN GONE INTO THE FINANCIAL CREDENCE OF THE ASSESSEE. 5. LD. CIT(A) HAS ALSO DISCUSSED THE POWERS OF CIT( A) TO GRANT STAY AND HAS MENTIONED THAT THOUGH THIS POWER HAS NOT ITA NO. 2347/D/2011 4 BEEN EXPRESSLY PROVIDED IN THE STATUTE BUT THE SAID POWER OF CIT(A) IS CLEARLY ENVISAGED BY THE DECISION IN THE CASE OF PRAKASH TRIPATHI VS. CIT 208 ITR 461 AND PAULSONS LITHO WORKS VS. ITO 208 ITR 676 (MAD.) (HC). IT IS AGAIN ST THE STAY ORDER PASSED BY LD. CIT(A) THE DEPARTMENT HAS FILED AFOREMENTIONED APPEAL. 6. AN APPLICATION FOR ADJOURNMENT OF HEARING OF APP EAL HAS BEEN FILED BY THE ASSESSEE. HOWEVER IT WAS OBSERV ED THAT APPEAL CAN BE DISPOSED OFF ON THE FACE OF IT HENCE REQUEST FOR ADJOURNMENT WAS REJECTED AND APPEAL WAS PROCEEDED T O BE HEARD UPON THE ARGUMENTS SUBMITTED BY LD. DR AND AF TER CONSIDERING THE MATERIAL AVAILABLE ON OUR RECORD. 7. LD. DR RELYING UPON THE GROUNDS OF APPEAL SUBMIT TED THAT NO POWER HAS BEEN GRANTED TO LD. CIT(A) FOR GR ANTING STAY AND THEREFORE THE ORDER PASSED BY LD. CIT(A) IS A GAINST THE STATUTORY PROVISIONS. THEREFORE HE PLEADED THAT O RDER OF CIT(A) SHOULD BE VACATED. HE FURTHER SUBMITTED TH AT SUCH ORDER HAS BEEN PASSED BY LD. CIT(A) WITHOUT GRANTIN G THE OPPORTUNITY TO THE AO. THEREFORE THE SAME IS VIOL ATIVE OF PRINCIPLES OF NATURAL JUSTICE. ITA NO. 2347/D/2011 5 8. WE HAVE CAREFULLY CONSIDERED THE SUBMISSION OF L D. DR AND ALSO CAREFULLY GONE THROUGH THE CONTENTS OF THE ORDER OF LD. CIT(A). LD.CIT(A) WHILE GRANTING THE INSTALLMENTS IS CONSCIOUS OF STATUTORY PROVISIONS WHICH DO NOT EXPRESSLY PROV IDED POWER TO LD. CIT(A) FOR GRANT OF STAY BUT SUCH POWER HAS BEEN INTERPRETED TO BE VESTED WITH CIT(A) IN THE AFOREME NTIONED DECISIONS WHICH ARE MENTIONED IN THE ORDER OF CIT(A ). THEREFORE IT WILL BE INCORRECT TO SAY THAT LD. CIT (A) DOES NOT HAVE THE POWER TO GRANT STAY TO THE ASSESSEE AND SU CH POWER IS AN INHERENT POWER ATTACHED TO THE APPELLATE JURI SDICTIONAL OF CIT(A) AND SUCH VIEW IS SUPPORTED BY AFOREMENTIONED TWO DECISIONS. 9. SO AS IT RELATES TO THE VIOLATION OF PRINCIPLES OF NATURAL JUSTICE WE FIND NO JUSTIFICATION IN SUCH ARGUMENT OF LD. DR. IT CAN BE SEEN FROM THE ORDER OF CIT(A) THAT AO WHILE DIRECTING THE ASSESSEE TO PAY 50% OF THE OUTSTANDING DEMAND IMMEDIATELY AND HAS ALSO ATTACHED THE BANK ACCOUNT OF THE ASSESSEE WHICH WILL HAMPER THE BUSINESS ACTIVITY OF THE ASSESSEE. IN SUCH A SITUATION LD. CIT(A) HAS GRAN T THE STAY TO THE ASSESSEE AND HAS TO VACATE THE ORDER OF AO WHE RE HE ITA NO. 2347/D/2011 6 FOUND THAT AO WAS NOT ONLY UNJUSTIFIED IN MAKING SU CH HUGE ADDITIONS WHICH ARE MERELY MADE FOR WANT OF VERIFIC ATION OF DETAILS. LD. CIT(A) HAS ALSO EXPRESSED THAT IT WIL L BE DIFFICULT FOR HIM TO DISPOSE OFF THE APPEAL IMMEDIATELY DUE T O THE REASON THAT OLD APPEALS ARE PENDING. HOWEVER LD. CIT(A) HAS TAKEN CARE OF THE OUTSTANDING DEMAND AND HE HAS ONL Y ORDERED THE ASSESSEE TO PAY MONTHLY INSTALLMENTS OF RS. 10 LAKH EACH. IN OUR CONSIDERED OPINION SUCH AN ORDE R OF CIT(A) CANNOT BE SAID TO BE AN ORDER WHICH IS SUFFERED FRO M ANY INFIRMITY. WE FIND NO REASON TO INTERFERE WITH SUC H AN ORDER OF LD. CIT(A). THE APPEAL FILED BY THE REVENUE IS DE VOID OF ANY MERITS AND HENCE HAS TO BE DISMISSED. HOWEVER WE EXPECT THE CIT(A) TO DISPOSE OFF THE STAY GRANTED APPEAL A S EARLY AS POSSIBLE. 10. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND JULY 2011. SD/- SD/- (G.E. VEERABHADRAPPA) (I.P. BANSAL ) VICE PRESIDENT JUDICIAL MEMBER ITA NO. 2347/D/2011 7 DATED: 22.7.11 *KAVITA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR