JETHMAL FAUJIMAL SONI Vs. ITAT

JUDGEMENT

(1.) THE challenge in these proceedings under Art. 226 of the Constitution is to the constitutional validity of the third proviso

(2.) OBSERVED that the case was adjourned from time to time for no fault of the assessee, but only in view of the fact that an identical issue was pending before a Special Bench of the Tribunal. The Tribunal however observed that in view of the third proviso which was inserted into s. 254(2A) by the Finance Act of 2008, it had no power to extend the stay beyond a period of 365 days. Accordingly, the application for stay was rejected and the appeal was posted for final hearing on

(3.) UNDER the first proviso to s. 254(2A), the Tribunal is empowered to pass an order of stay for a period not exceeding one hundred and eighty days from the date of such order and the Tribunal has to dispose of the appeal within the said period. In the second proviso it is provided that where such appeal is not so disposed of within the said period of stay, the Tribunal on an application by the assessee and on being satisfied that the delay in disposing of the appeal is not attributable to the assessee may extend the period of stay for a further period or periods; so, however, that the aggregate of the period originally allowed and the extended period shall not, in any case, exceed three hundred and sixty -five days, within which the appeal is to be disposed of. The third proviso which was inserted by the Finance Act of the first proviso or the extended period allowed under the second proviso, which shall not, in any case, exceed three hundred and sixty -five days, the order of stay shall stand vacated after the expiry of such period or periods, even if the delay in disposing of the appeal is not attributable to the assessee.