M/S.kalaignar Tv Pvt.ltd., Chennai-18 v. The Deputy Commissioner Of Income Tax Non Corporate Circle-20, Chennai-34

In the High Court of Judicature at Madras The Honourable Mr.Justice V.RAMASUBRAMANIAN M/s.Kalaignar TV Pvt.Ltd.,Chennai-18....Appellant in both appeals/ApplicantVs The Deputy Commissioner of Income TaxNon Corporate Circle-20, Chennai-34. ...Respondent inboth appeals/Respondent TAX CASE APPEALS under Section 260A of the Income Tax Act, 1961against the common order dated 31.8.2015 made respectively in (i)S.P.No. 345/Mds/2015 in I.T.A.No.1245/(Mds)/2015 and (ii)S.P.No.346/Mds/2015 in I.T.A.No.1246/(Mds)/2015 on the file of theIncome Tax Appellate Tribunal 'C' Bench, Chennai, for the assessmentyears 2009-10 and 2010-11 against the order of the Commissioner ofIncome Tax (Appeals)-14 2nd Floor Main Building No.121 M.G.Road,Nungambakkam, Chennai-34 dated 31/03/2015 in ITA.No.78 & 79 CIT(A)-14/2013-2014(old ITA Nos.55 & 59/14-15/A14) of the Assessment years2009-2010 & 2010-2011. against the order of the Deputy Commissioner of Income Tax MediaCircle-1 Chennai-34 dated 28/03/2013 in PAN- . These appeals are by the same assessee questioning thecorrectness of the conditional order passed by the Income TaxAppellate Tribunal for the grant of a stay pending appeals. https://hcservices.ecourts.gov.in/hcservices/ 2. Heard Mr.Arvind P.Datar, learned Senior Counsel appearing forthe appellant/assessee and Mr.M.Swaminathan, learned Senior StandingCounsel for the respondent/Revenue. 3. As against the two independent orders of assessment, bothdated 28.3.2013 relating respectively to the assessment years 2009-10and 2010-11, imposing upon the appellant, a demand to the tune ofRs.9.28 Crores and Rs.81.39 Crores respectively, the appellant filedtwo statutory appeals before the Commissioner of Income Tax(Appeals). By a common order dated 31.3.2015, the Commissioner ofIncome Tax (Appeals) dismissed both the appeals. 4. As against the said common order, the appellant filed twoindependent appeals before the Income Tax Appellate Tribunal alongwith petitions for stay. On the petitions for stay, the Tribunalpassed a common order dated 31.8.2015, directing the appellant to payRs.10 Crores on or before 15.9.2015. The Tribunal also directed theappellant to pay 10% of the collection including receivables fromvarious heads, towards outstanding demand. This amount was directedto be paid once in a week. Certain other conditions were alsoimposed. Aggrieved by those conditions, the appellant has come upwith the above appeals raising the following substantial questions oflaw : "(i) Whether the Tribunal erred in taking upthe stay petition for hearing on merits, when theearlier decision on 29.5.2015 was to take up themain appeal itself for final hearing on24.6.2015, which was then adjourned for onlyfinal hearing on 6.8.2015 and 27.8.2015 ? (ii) Whether the new Bench of the Income TaxAppellate Tribunal ought to have passed orders onmerits in stay petition, when the Bench on theprevious day adjourned the case to 8.10.2015 forfinal hearing and had posted the stay petition on28.8.2015 only for formal orders, as orders inthe stay petition could be heard only on Friday ? (iii) Whether the Tribunal was correct ingranting conditional stay without considering thefact that the appellant has pleaded andestablished prima facie case, balance ofconvenience and genuine financial hardship ? (iv) Whether the Tribunal was correct ingranting conditional stay upon payment of Rs.10crores on or before 15.9.2015 for the assessmentyears 2009-2010 and 2010-11, when the appellant has genuine financial difficulties and does nothave liquid cash or assets to pay even fractionof the demand ? and (v) Whether the Tribunal was correct inimposing unreasonable, onerous and impossibleconditions in granting conditional stay, which isviolative of Article 19(1)(g) of The Constitutionand will lead to unnecessary harassment to theappellant ?" (iii) Whether the Tribunal was correct ingranting conditional stay without considering thefact that the appellant has pleaded andestablished prima facie case, balance ofconvenience and genuine financial hardship ? (iv) Whether the Tribunal was correct ingranting conditional stay upon payment of Rs.10crores on or before 15.9.2015 for the assessmentyears 2009-2010 and 2010-11, when the appellant has genuine financial difficulties and does nothave liquid cash or assets to pay even fractionof the demand ? and (v) Whether the Tribunal was correct inimposing unreasonable, onerous and impossibleconditions in granting conditional stay, which isviolative of Article 19(1)(g) of The Constitutionand will lead to unnecessary harassment to theappellant ?" 5. A careful look at the questions of law raised by theappellant would show that all of them hinge only upon the questionsof fact. But, the underlying issue is that the appellant has agrievance about the fairness of procedure adopted by the Tribunal indealing with their petitions for stay. This is the only reason as towhy we have chosen to entertain both the appeals. 6. In the memorandum of grounds of appeals, the appellant haschosen to narrate certain things that happened before the Tribunal,which had compelled them to raise the above questions of law. We donot wish to get into these factual details and pronounce a verdict,since the appeals are still pending before the Tribunal. 7. In the light of the grievance of the appellant that they didnot have a fair opportunity, we only wish to remove that grievance ofthe appellant by disposing of these appeals with certain directionsto the Tribunal. We make it clear that we are not recording anyfinding on the complaints made by the appellant in their grounds ofappeals, but we wish to redress their grievance with regard to theprocedure adopted. 8. The appeals are admittedly slated for hearing on 8.10.2015.There is a dispute as to whether the stay petitions or the appealsare to be taken up for final hearing on 8.10.2015. But, we are of theconsidered view that in the light of the grievances expressed by theappellant about the fairness of the procedure adopted by theTribunal, it would be better to give the choice to the Tribunal totake up on 8.10.2015, depending upon the Tribunal's convenience,either the stay petitions or the main appeals and dispose either ofthe two within a period of two weeks. 9. Therefore, both the appeals are allowed, the common order ofthe Tribunal is set aside and the matters are remitted back to theTribunal. We direct the Tribunal to take up either the stay petitionsor the appeals on 8.10.2015. We leave the choice to the Tribunal andthe Tribunal shall take up either of the two without reference to anyof the observations contained in its previous order or in the ordernow passed by us. We direct the Tribunal to dispose of either thestay petitions or the main appeals by hearing them on 8.10.2015 and https://hcservices.ecourts.gov.in/hcservices/ 9.10.2015. The learned counsel for the parties shall cooperate. TheTribunal shall endeavour to dispose of either the stay petitions orthe main appeals within two weeks thereafter. No costs. Consequently,the above MPs are closed. -s/d- Assistant Registrar(CSIV) dt:30/09/2015True Copy Sub-Assistant Registrar To1.The Assistant RegistrarIII floor Rajaji BhavanThe Income Tax Appellate Tribunal 'C' Bench,Besant Nagar Chennai. 2.The Commissioner of Income Tax (Appeals)2nd floor Main BuildingNO.121 M.G.Road, Nungambakkam3.The Deputy Commissionerof Income-Tax Media Cirlce-1Chennai-34. +2 ccs to M/S.M.Swaminathan, Advocate sr.52640+2 ccs to M/S.S.Senthamarai Kumaran Advcocate sr.52894,52895T.C.A.Nos.893 & 894 of 2015 &M.P.Nos.1,1,2,2 and 3 of 2015aa30/09/2015