Ajay Kumar Mittal, J. - (1.) This appeal has been preferred by the revenue under Sec. 260A of the Income Tax Act, 1961 (in short, "the Act") against the order dated 12.6.2015, Annexure A.II passed by the Income Tax Appellate Tribunal, Delhi Bench 'I' Delhi (in short, "the Tribunal") in SA No. 337/DEL/2015 (in ITA No. 1126/DEL/2014) for the assessment year 2009 -10, claiming following substantial questions of law: - - "1. Whether the Hon'ble ITAT has acted in contravention of the Second Proviso of Sec. 254(2A) of the Income Tax Act, 1961 as the combined period of stay has exceeded 365 days?
(2.) Whether the order of the ITAT be treated as void ab initio in the light of third proviso to Sec. 254(2A) of the Income Tax Act, 1961, which provides that stay of demand stands vacated after expiry of a period of 365 days even if delay in disposal of appeal is not attributable to the assessee - 2. A few facts relevant for the decision of the controversy involved as narrated in the appeal may be noticed. The assessee furnished its return of income for the assessment year 2009 -10 declaring income of Rs. 54,20,34,020/ - on 29.9.2009. The case was selected for scrutiny by issuing notice under Sec. 143(2) of the Act to the assessee. Reference was made to the Transfer Pricing Officer (TPO) to determine the Arm's Length Price (ALP). The TPO passed order under Sec. 92CA(3) of the Act on 26.11.2012 and determined the Transfer Pricing adjustment at Rs. 8,50,26,705/ -. Draft order was passed on 12.12.2013 after making addition of Rs. 8,50,26,705/ - on account of transfer pricing adjustments and disallowance of Rs. 5,51,000/ - on account of amount spent towards lease hold improvement. Against the draft order, the assessee moved before the Dispute Resolution Panel III, New Delhi. On 26.11.2013, the Dispute Resolution Panel had given directions under Sec. 144C(5) of the Act and accordingly, final assessment order under Sec. 143(3) of the Act read with Sec. 144C(13) of the Act was passed by the Assessing Officer on 19.12.2013, Annexure A.1 at a total income of Rs. 62,26,72,260/ - which includes addition of Rs. 7,56,79,236/ - on account of transfer pricing adjustments and net disallowance of Rs. 49,59,000/ - on account of amount spent towards lease hold improvement as per direction of the Dispute Resolution Panel. Accordingly. a demand of Rs. 4,23,82,230/ - was raised. Aggrieved by the order, the assessee filed appeal before the Tribunal alongwith stay application. The stay was originally granted on 6.6.2014 and further this stay was extended vide order dated 27.11.2014 upto 5.6.2015 or till the disposal of the appeal. Thus, period of 365 days of stay expired on 5.6.2015. The Tribunal vide order dated 12.6.2015, Annexure A.II further extended the stay for another period of six months or till the disposal of the appeal relying upon the judgment of the Delhi High Court in Pepsi Foods Pvt. Limited v/s. ACIT and another, : 2015 -TIOL -1306 HC -DEL -IT. According to the appellant -revenue, the decision of the Tribunal is not in accordance with law as it is contrary to the second and third provisos to Sec. 254(2A) of the Act. Hence the instant appeal by the revenue.
(3.) We have heard learned counsel for the appellant -revenue.;