Supreme Court of India ‘stay of demand’ ruling brings relief to taxpayers

International Tax Review is part of Legal Benchmarking Limited, 4 Bouverie Street, London, EC4Y 8AX

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Supreme Court of India ‘stay of demand’ ruling brings relief to taxpayers

Sponsored by

Logo JPG.jpg
Supreme Court ruling welcomed by taxpayers seeking stay beyond 365 days

Raghavan Ramabadran and Bharathi Krishnaprasad of Lakshmikumaran & Sridharan analyse the Pepsi Foods ruling relating to stay of demand.

The Supreme Court of India, on April 6 2021, pronounced an important ruling in Pepsi Foods Ltd (DCIT v. Pepsi Foods Ltd (Civil Appeal No. 1106 of 2021) relating to stay of demand. The Supreme Court declared a certain part of the third proviso of section 254(2A) of the Income Tax Act, 1961 (IT Act) as being unconstitutional. 

This proviso authorises automatic vacation of stay of demand after a certain period, even in cases where a delay in hearing of appeals is not attributable to the taxpayer.

Tribunal’s power to grant stay

The Appellate Tribunal (Tribunal) is the second appellate authority in the appellate mechanism under the IT Act. Being conferred with the power to hear and dispose appeals, the tribunal also has an inherent power to grant interim relief (ITO v. MK Mohammed Kunhi [1968] 2 SCR 65). 

To ensure that the power to grant stay does not come at the cost of depriving the tax department of its right to recover taxes, certain legislative amendments were made to section 254(2A) over a period of time. In summary: 

  • The tribunal can initially grant stay for a period not exceeding 180 days and dispose the appeal within such period – first proviso;

  • If an appeal is not disposed before the aforesaid period, the tribunal may extend the stay for further period not exceeding 365 days in total. This extension of stay can be allowed only in situations where the delay is not attributable to the assessee – second proviso; and

  • Where the appeal is not disposed of with the extended period, the stay shall stand automatically vacated "even if the delay is not attributable to the assessee" – third proviso.

Order of the Supreme Court

"Even if the delay is not attributable to the assessee" was challenged before the Delhi High Court which held that this provision would not stand the test of being constitutionally valid. The Revenue appealed against the order passed by the High Court before the Supreme Court.

The Supreme Court held that such an automatic vacation of stay where the taxpayer is not at fault would be violative of Article 14 of the Constitution. It was held that vacation of stay in favour of revenue for no fault of the taxpayer would render the proviso manifestly arbitrary.

Can the tribunal grant stay beyond 365 days?

The ruling raises an important question as to whether the tribunal has the power to extend stay beyond 365 days in cases where the delay is not attributable to the assessee, especially considering that the cap of 365 days contained in the second proviso is not upset by this ruling.

An earlier decision rendered by the Bombay High Court in Narang Overseas Pvt Ltd (Narang Overseas P Ltd v. ITAT [2007] 295 ITR 22) held that that it would not be possible to hold on one hand that there is a vested right of appeal and on the other hand hold that there is no power to continue the interim relief for no fault of the taxpayer. The court held that such a reading would be unreasonable and violative of Article 14.

Therefore, it may still be possible for the taxpayer to seek extension of stay in genuine cases where the delay in disposal of appeal is not attributable to the taxpayer. The tribunals have discretion to extend the stay even beyond 365 days provided the case of the taxpayer merits such an interim relief to be granted or extended. 

Comparable GST provisions

It may be interesting to note that the provisions in GST Law (sections 107 and 112 of the Central Goods and Services Tax Act) provide for complete stay of demand on a condition that a stipulated percentage of the total demand be deposited before filing the appeal. 

Under the IT Act, a similar amendment has been made effective from AY 2020–2021. This amendment has the effect of restricting the tribunal’s power to grant full stay. A minimum of 20% of demand amount is required to be deposited in cash or given in the form of security. Unlike GST Law, if a taxpayer pays the 20% of demand, it does not result in automatic stay of the balance amounts. Stay for the balance amount is at the discretion of the tribunal.

COVID-19

Hardships may be faced by the taxpayers as a result of the ongoing pandemic where they may not be able to argue their cases before the tribunals due to health reasons or difficulties that are caused by lockdowns imposed in different states in India.  

Extensions granted by different high courts to interim orders passed would certainly come to the aid of taxpayers facing imminent action of recovery from the tax authorities. 

Nevertheless, there can be circumstances where it may be necessary for the tribunals to consider such instances as not being cases of dilatory tactics. 

Closing remarks

The ruling granted by the Supreme Court is a welcome step for taxpayers seeking stay beyond 365 days. However, considering previous experience with the tax authorities, this issue is likely to see further developments in the future. 

For further information on this topic, please visit the firm's website 

  

Raghavan Ramabadran

Partner, Lakshmikumaran & Sridharan

E: raghavan.r@lakshmisri.com

 

Bharathi Krishnaprasad

Principal associate, Lakshmikumaran & Sridharan

E: bharathi.kprasad@lakshmisri.com


more across site & bottom lb ros

More from across our site

In-house teams who want a balance of internal control and external expertise for pillar two should seriously consider co-sourcing models, Russell Gammon of Tax Systems argues
The OECD has vowed to continue working with the US despite the president effectively pulling the country out of the organisation’s global minimum tax deal
Norton Rose Fulbright highlights a Brazilian investment fund as a practical example of how new Dutch tax rules will require significant attention from foreign companies
Thomson Reuters now has ‘end-to-end capability’ for its tax workflow business, according to its president for tax accounting and audit professionals
Patrick O’Gara, who is rated as a ‘highly regarded practitioner’ by World Tax, had spent over 20 years at Baker McKenzie
If approved, it would become the first ‘big four’ firm to practise law in the US; in other news, Morrison Foerster hired a new global tax co-chair
The ‘birth date’ of the service, which will collect tariffs, duties and other foreign revenue, will be January 20
Awards
Submit your nominations to this year's WIBL Americas Awards by February 28
Awards
Research for the annual Women in Business Law Awards has begun – submit your entries by February 28
In-house counsel across a number of regions are unimpressed with their tax advisers’ CSR efforts, according to ITR+ research
Gift this article