Heard Mr.t.r.senthil Kumar, Learned Counsel Appearing Forthe Appellant/Revenue And Mr.r.sivaraman, Learned Counsel Forthe Respondent/Assessee v. Https://Hcservices.ecourts.gov.in/Hcservices

IN THE HIGH COURT OF JUDICATURE AT MADRAS CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAMandTHE HONOURABLE MR.JUSTICE N.SATHISH KUMARTax Case (Appeal) Nos.325 to 330 of 2018andC.M.P.No.6401 to 6405 of 2018 in Commissioner of Income Tax Central I,No.108, Mahatma Gandhi Road,Chennai. ... Appellant in all Tax Case Appeals-vs- Sri S.Duraipandi &Sri S.Thalavaipandian [AoP]C/o CNGSN AssociatesPAN: AAAAD4723G... Respondent in all Tax Case Appeals COMMON PRAYER: Tax Case (Appeals) filed under Section 260-A ofthe Income Tax Act, 1961 against the orders of the Income TaxAppellate Tribunal Bench 'D', Chennai, dated 31.07.2015 inITA.Nos.736 to 741/MDS/2015 against the order dated 30.12.2014and made in ITA Nos.79 to 85/12-13/A-II on the file of theCommissioner of Income Tax (A) 19, Investigation Wing, Chennai34 in TC(A) 325 to 330/2018 and against the order dated20.09.2010 and made in PAN on the file of theAssistant Commissioner of Income Tax, Central Circle III(4)Chennai 34 (in TC(A) 325 to 330/2018) These appeals by the revenue have been filed under Section260A of the Income-tax Act, 1961 (hereinafter referred to as"the Act"), challenging the orders passed by the Income TaxAppellate Tribunal Bench 'D', Chennai, dated 31.07.2015 in https://hcservices.ecourts.gov.in/hcservices/ ITA.Nos.736 to 741/MDS/2015 for the assessment years 2002-03 to2007-08. 2.The revenue has filed these appeals raising the followingsubstantial questions of law:-“1.Whether the Appellate Tribunal is rightin law in holding that return filed by theassessee in response to notice u/s. 153A isequivalent to the return filed under Section 139(1) of the Act and all the consequent benefitsthereto accrues to such return?2.Whether the Tribunal is right in law inholding that return filed by the assessee inresponse to notice u/s 153A is required to beprocessed u/s.143(1)(a) without noting the bindingjudgment of Hon'ble Apex Court reported in 260 ITR84 wherein it was mentioned that when regularassessment is contemplated, there is no need forsummary proceeding u/s. 143(1)(a) of the IT Act?3.Whether the Appellate Tribunal is right inlaw in holding that interest under Section 234A ischargeable as per sub-section 3 of Section 234Awhereas sub-section 1 of Section 234A is attractedto the facts of the case? 3.Heard Mr.T.R.Senthil Kumar, learned counsel appearing forthe appellant/revenue and Mr.R.Sivaraman, learned counsel forthe respondent/assessee. 4.In our considered view, there may not be any necessity forthe Court to examine the legal aspects to answer the substantialquestions of law since this Court is of the view that theTribunal should have awaited the decision of this Court in thecase of ACIT vs. V.N.Devadoss in T.C.A.Nos.821 to 824 of 2014.In fact this was brought to the notice of the Tribunal by therevenue and a copy of the interim order of stay dated 26.11.2014granted by the Hon'ble Division Bench of this Court in thoseappeals were produced before the Tribunal and in paragraph 8 ofthe impugned order, the Tribunal has extracted the interim ordergranted by the Hon'ble Division Bench. Nevertheless, inparagraph 9, the Tribunal would state that the issue regardingthe period for which interest has to be charged under Section234A and 234B of the Act is not the subject matter of appealbefore the High Court and therefore regardless of the said orderbeing granted by the Hon'ble Division Bench, the Tribunal holdsthat the direction given by the Commissioner of Income Tax(Appeals) to the Assessing Officer to re-compute the correctchargeable interest under the provisions of the Section 234A and234B of the Act as per the decision in the case of ACIT vs.V.N.Devadoss, in our considered view is improper. What isrequired to be seen is the substantial questions of law raised in T.C.A.Nos.821 to 824 of 2014 which touches upon the largerissue and in fact they are identical to the substantialquestions of law raised in these appeals as well. If the firsttwo substantial questions of law are answered, consequently theCourt will have to answer the substantial question of law No.3. 5.Nextly, we would like to observe that when an order ofstay is granted by the High Court in a tax case appeal, itcannot obviously stay the statutory provision. Nevertheless, ithas got power to stay the finding recorded by the Tribunalagainst which the appeal emanates. Thus, by granting an orderof stay, it pre-supposes that the Court has come to the primafacie conclusion that the appellant has made out a case foradmission and therefore, the appeal has been admitted. Asrightly contended by the learned counsel for the revenue thatvery rarely the revenue file a stay petition in a tax caseappeal. Therefore, when an appeal is entertained and stay hasbeen granted, the Tribunal which is inferior to thejurisdictional High Court shall keep the matter in abeyance andshould avoid interpretation of the question raised in the appealwhich is pending before the jurisdictional High Court unless itis clearly established that the cases are factually different.Such a contingency does not arise in these appeals because theTribunal has affirmed the order passed by the Commissioner ofIncome Tax (Appeals) who issued a direction by following thedirections issued in the case of ACIT vs. V.N.Devadoss. In thelight of the above, we are of the considered view that theappeals should be kept pending before the Tribunal and await thedecision in T.C.A.Nos.821 to 824 of 2014. 6.For the above reasons, these tax case appeals filed by therevenue are allowed, the common order passed by the Tribunal isset aside and the matter is remanded back to the Tribunal with adirection to the Tribunal to await the decision in the case ofACIT vs. V.N.Devadoss in T.C.A.Nos.821 to 824 of 2014. Nocosts. s/d- Assistant Registrar(CS V) True Copy Sub-Assistant Registrar cse To 1.The Income Tax Appellate Tribunal Bench 'C', Chennai. 2. The Commissioner of Income Tax Center I No.108, Mahatma Gandhi Road, Chennai. 3. The Commissioner of Income Tax(A)19 Investigation Wing, Chennai 34. Investigation Wing, Chennai 34. 4. The Assistant Commissioner of Income Tax Central Circle III(4), Chennai 34. Central Circle III(4), Chennai 34. +1 CC to Mr.T.R.Senthil Kumar, Advocate sr 88240. Tax Case (Appeal) Nos.325 to 330 of 2018andC.M.P.No.6401 to 6405 of 2018 VD(CO)SP(24/01/2019)