PREM PARKASH TRIPATHI Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS petition filed under Article 226 of the Constitution raises an important question whether the Commissioner of Income-tax (Appeals) possesses power to grant stay against recovery of tax.

(2.) WHEREAS the petitioner's returned income was Rs. 12,840 and Rs. 16,430 for the assessment years 1989-90 and 1991-92, he was assessed in the status of an individual at Rs. 12,97,130 and Rs. 26,18,190, respectively. Aggrieved, the petitioner filed appeals before the Commissioner of Income-tax (Appeals), Kanpur, for both the years, which are said to be still pending.

(3.) BEFORE Rule 35A was inserted in the Income-tax (Appellate Tribunal) Rules, 1963 (for short, "the Rules"), with effect from February 12, 1970, conferring power on the Income-tax Appellate Tribunal to grant stay, a question came up before the Supreme Court in ITO v. M.K. Mohammed Kunhi [1969] 71 ITR 815 ; AIR 1969 SC 430, whether or not the Appellate Tribunal possessed power to grant stay. Interpreting Section 255 of the Act, the Supreme Court observed (at page 822); "Section 255(5) of the Act does empower the Appellate Tribunal to regulate its own procedure, but it is very doubtful if the power of stay can be spelt out from that provision". The Supreme Court then enunciated (at page 822): "But the Appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction. This is particularly so when Section 220(6) deals expressly with a situation when an appeal is pending before the Appellate Assistant Commissioner, but the Act is silent in that behalf when an appeal is pending before the Appellate Tribunal."