ASHOK KUMAR AGGARWAL Vs. INCOME TAX APPELLATE TRIBUNAL

JUDGEMENT

(1.) RULE D.B. Since a short point is involved, we have heard learned counsel for the parties and now we proceed to decide the matter.

(2.) BRIEFLY the facts are these. By order dt. 31st Oct., 1996, passed under S. 158BC(c) of the IT Act, 1961, by the Asstt. CIT, the undisclosed income of the petitioner was determined at Rs. 13,13,49,778. On 9th Nov., 1996, an appeal was preferred by the petitioner before the Tribunal against the order dt. 31st Oct., 1996. The petitioner had also filed an application for stay of recovery of the disputed demand before the Asstt. CIT and another application for stay of the recovery proceedings was filed before the CIT. The CIT by order dt. 3rd March, 1997, has granted stay of the demand till 28th Feb., 1998, or disposal of the first appeal before Tribunal, whichever is earlier, subject to the condition that the petitioner should pay 10 per cent of the demand immediately. The petitioner has also filed an application for stay of recovery proceedings before the Tribunal. That application has been dismissed by the impugned order dt. 3rd April, 1997.

(3.) MR . Aggarwal places reliance on decision of the Madras High Court in Sri Balaji Trading Co. vs. Dy. CTO (1989) 72 STC 417 (Mad) : (1989) 175 ITR 428 (Mad) to show the aspects required to be considered by the appellate authority at the time of passing an order on stay application. Reliance is also placed by learned counsel on the decision of the Allahabad High Court in Mrs. R. Mani Goyal vs. CIT (1996) 131 CTR (All) 274 : (1996) 217 ITR 641 (All) : TC 52R.231, in support of the contention that financial hardship is required to be considered at the time of deciding the stay application. It is, however, not necessary in the present petition to lay down the aspects required to be kept in view while deciding the stay application by the appellate authority for the reason that the appellate authority has not independently decided the application and has rejected the stay petition merely on the ground of an order having been made by the CIT. In our view, the appellate authority is required to independently decide the application on its own merits. Thus it would be open for Mr. Aggarwal to cite the aforesaid decisions or any other decision on the subject before the Tribunal at the time of making submissions on the stay application.