The Principal Commissioner Of Income Tax, Gurgaon v. Carrier Air-Conditioning And Refrigeration Ltd., Gurgaon

ITA-353-2018 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH ITA-353-2018 (O&M) Date of Decision: 8.3.2019 The Principal Commissioner of Income Tax, Gurgaon Versus ....Appellant. Carrier Air-conditioning and Refrigeration Ltd., Gurgaon ...Respondent. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.HON'BLE MRS. JUSTICE MANJARI NEHRU KAUL. PRESENT: Mr. Tajender K. Joshi, Sr. Standing Counsel for the appellant. *** AJAY KUMAR MITTAL, J. 1.This appeal has been preferred by the revenue under Section260A of the Income Tax Act, 1961 (in short “the Act”) against the orderdated 23.2.2018 (Annexure A-II) passed by the Income Tax AppellateTribunal, Delhi Bench, Friday 1-T, New Delhi (hereinafter referred to as“the Tribunal”) in ITA No. 1126/DEL/2014, for the assessment year 2009-2010, claiming the following substantial questions of law:- 1.Whether the Hon'ble ITAT has acted incontravention of the Second Proviso of Section254(2A) of the Income Tax Act, 1961, as thecombined period of stay has been exceeded 365days?contravention of the Second Proviso of Section254(2A) of the Income Tax Act, 1961, as thecombined period of stay has been exceeded 365days? 2.Whether the order of the ITAT be treated as void-ab-initio in light of Third Proviso to Section 254(2A) of the Income Tax Act, 1961 which providesab-initio in light of Third Proviso to Section 254(2A) of the Income Tax Act, 1961 which provides -2- that stay of demand stands vacated after expiry of aperiod of 365 days, even if delay in disposal ofappeal is not attributable to the assessee? 2.The assessee had filed its return of income on 29.9.2009 for theassessment year 2009-10 declaring the income of ` 54,20,34,020/-. Its casewas selected for scrutiny and notice under Section 143(2) of the Act wasissued. A reference was made to the Transfer Pricing Officer to determinethe Arm's Length Price who vide order dated 26.11.2012 passed underSection 92CA(3) of the Act determined the Transfer Pricing Adjustment at` 8,50,26,705/-. The Assessing Officer vide order dated 12.2.2013, frameda draft assessment order after making the addition of ` 8,50,26,705/- onaccount of Transfer Pricing Adjustments and disallowance of ` 5,51,000/-on account of amount spent towards lease hold improvement. Against thesaid order, the assessee moved before the Dispute Resolution Panel-III, NewDelhi who vide order dated 26.11.2013 issued the directions under Section144C(5) of the Act. In pursuance thereto, the Assessing Officer vide orderdated 19.12.2013 (Annexure A-1) framed the final assessment at a totalincome of ` 62,26,72,260/- including addition of ` 7,56,79,236/- on accountof Transfer Pricing Adjustments and net disallowance of ` 49,59,000/- quathe amount spent towards lease hold improvement. Accordingly, a demandof ` 4,23,82,230/- was raised, out of which the assessee had paid thedemand of ` 2,93,43,800/- and ` 1,30,38,430/- remains as balanceoutstanding demand. Feeling aggrieved by the order, Annexure A-1, theassessee filed an appeal along with stay application before the Tribunal.The Tribunal vide order dated 6.6.2014 granted stay of demand for sixGURBACHAN SINGH2019.03.13 10:20months, i.e. from 6.6.2014 to 5.12.2015 or till the disposal of the appeal.I attest to the accuracy andintegrity of this document ITA-353-2018 -3- ITA-353-2018 -3- The assessee again filed an application for extension of stay and theTribunal vide order dated 27.11.2014 further extended stay of demand forsix months, i.e. upto 5.6.2015 or till the disposal of the appeal, whicheverwas earlier. Further, the Tribunal vide orders dated 12.6.2015 and 5.2.2016further extended the stay for another period of six months or till the disposalof the appeal. Another period of 30 days or till the pronouncement of theorder of the appeal was extended by the Tribunal vide order dated 5.8.2016.Thereafter, the Tribunal vide order dated 23.2.2018 (Annexure A-II), staywas extended for another period of six months or till the disposal of theappeal whichever was earlier. According to the revenue, the Tribunal hasextended the stay beyond 365 days which is not permissible in law. Hence,the present appeal. 3.We have heard learned counsel for the revenue. 4.It was not disputed by the learned counsel for the appellant-revenue that the matter in issue is no longer res integra and standsconcluded by the decision of this Court in ITA-5-2016 decided on25.4.2016 whereby identical question as claimed in the present appeal, hasbeen held not to be substantial question of law. 5.For the reasons recorded in the aforementioned appeal, thepresent appeal is also dismissed. (AJAY KUMAR MITTAL) JUDGE March 8, 2019 gbs (MANJARI NEHRU KAUL)JUDGE Whether Speaking/ReasonedYes/NoWhether ReportableYes/No