Turner International India Pvt. Ltd v. Deputy Commissioner Of Income Tax

$~58 *IN THE HIGH COURT OF DELHI AT NEW DELHI+W.P.(C) 9200/2017 & CM APPL. 37634/2017 TURNER INTERNATIONAL INDIA PVT. LTD. ..... PetitionerThrough:Mr. M.S.Syali, Senior Advocate withMr.Mayank Nagi, Mr.Vikrant A.Maheshwari, Advocates. versus DEPUTY COMMISSIONER OF INCOME TAX ..... Respondent Through:Mr. Asheesh Jain, Senior StandingCounsel for the Income TaxDepartment. CORAM:JUSTICE S. MURALIDHARJUSTICE PRATHIBA M. SINGH O R D E R17.10.2017 % 1. The challenge in the present writ petition by the Petitioner Assessee is toan order dated 10[th]October 2017 passed by the Income Tax AppellateTribunal (‘ITAT’), whereby the stay earlier granted by the ITAT by an orderdated 4[th]August 2017 for a period of 6 months during the pendency of thePetitioner’s Appeal being ITA No. 218/Del/2017 for the Assessment Year(‘AY’) 2012-13 stood vacated. 2. The order dated 4[th]August 2017 of the ITAT, passed after hearing boththe Petitioner Assessee as well as the Respondent-Revenue, reads as under: “By means of the present stay application, the assessee seeksextension of the stay of outstanding demand granted by theTribunal vide its order dated 03.02.2017, in relation to theassessment year 2012-13. 2. The ld. AR submitted that the conditions stipulated, whilegranting original stay, were duly compiled with and the delay indisposing of the appeal has not occurred due to the assessee. Itwas, therefore, prayed that the stay hitherto granted may beextended. The ld. DR opposed the extension of stay. 3. We have heard the parties and perused the relevant materialon record. It is indisputably found that the terms of stay havebeen duly compiled with. The appeal could not be finally heardfor one reason or the other, but for no fault of the assessee.Considering the entirety of the facts and circumstances of theinstant case, we are inclined to grant extension of stay for afurther period of six months from today or till the disposal ofthe appeal, whichever is earlier. 4. In the result, the stay application is allowed.” 3. It is pointed out that the appeal filed by the Petitioner was listed forhearing before the ITAT on 10[th]October 2017. On that date, the learnedAuthorised Representative (‘AR’) of the Petitioner was not in the countryand a request was made that the appeal be adjourned to the immediatefollowing day. The ITAT records in the impugned order that, “the Ld. DRhowever is insisting on either going ahead with the hearing or vacating thestay”. In the circumstances, the ITAT was of the view that “we have nooption but to vacate the stay”. 4. The discretion whether an order of stay should be vacated is definitelyavailable with the ITAT but such discretion should be exercised judicially.Given the above background when as recently as on 4[th]August 2017, theITAT thought it fit to extend the stay “for a further period of six months from today or till the disposal of the appeal, whichever is earlier”, the appealnot having been being disposed of, the ITAT was under no compulsion toimmediately vacate the stay only because a request for an adjournment byone day was made by the AR of the Petitioner. The appeal, which is nowlisted for hearing before the ITAT on 20th November 2017, could have beeneither advanced to an earlier date or it made clear that there would be nofurther adjournment on that date. 5. Mr. Syali, the learned Senior Counsel appearing for the Petitioner assuresthe Court that the Petitioner-Assessee will proceed with its appeal on 20thNovember 2017 without seeking any adjournment. In view of the aboveassurance, no further directions are called for in this regard. 6. In the circumstances, the Court sets aside the order dated 10[th]October2017 passed by the ITAT and directs that the appeal of the Petitioner beingITA No. 218/Del/2017 be listed on 20[th]November 2017, the date alreadyfixed by the ITAT. The interim order dated 4th August 2017 of the ITAT isrestored. 7. The writ petition is allowed and the application is disposed of in the aboveterms. S. MURALIDHAR, J. OCTOBER 17, 2017/j 5. Mr. Syali, the learned Senior Counsel appearing for the Petitioner assuresthe Court that the Petitioner-Assessee will proceed with its appeal on 20thNovember 2017 without seeking any adjournment. In view of the aboveassurance, no further directions are called for in this regard. 6. In the circumstances, the Court sets aside the order dated 10[th]October2017 passed by the ITAT and directs that the appeal of the Petitioner beingITA No. 218/Del/2017 be listed on 20[th]November 2017, the date alreadyfixed by the ITAT. The interim order dated 4th August 2017 of the ITAT isrestored. 7. The writ petition is allowed and the application is disposed of in the aboveterms. S. MURALIDHAR, J. OCTOBER 17, 2017/j PRATHIBA M. SINGH, J.