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2019 (11) TMI 694 - AT - Income TaxStay petition rejected - appeal maintainable before this Tribunal or not - appellant directed to pay 20% of the demand as per Circular No. 1914 r.w. on dt. 29-02-2016 - HELD THAT - The question of stay application before the Tribunal thus normally comes into play only when the demands in question are impugned in appeal before us. That apart, the stay under section 220(6) can only be granted by the Assessing Officer, and not by his supervisory authorities such as the Principal Commissioner of Income Tax. As a matter of fact, an order passed by the Principal Commissioner of Income Tax, declining grant of stay during the currency of appeal before the first appellate authority i.e. CIT(A), is only an administrative order. The occasion to seek invocation of such an administrative indulgence comes after the Assessing Officer declines to exercise his powers of granting stay under section 220(6), and, perhaps for this reason, it is somewhat inappropriately described as an order under section 220(6). Such an order is not an appealable order before this Tribunal; the law does not provide so. The only possibility of the Tribunal coming into picture, so far as the stay of demands during the pendency of first appeal before the CIT(A), is in a situation in which the CIT(A) rejects the stay petition filed by the assessee. That proposition too is highly contentious, to say the minimum, but let s not bother about that hypothetical situation as on now. Present appeal is not an appeal maintainable before this Tribunal. Not only that the appeal is ill conceived, but, even after pointing out the legal position, rather than explaining his stand or expressing remorse for having filed this appeal, the assessee did not even bother to attend the court proceedings any further, and submitted this note pointing out, on the basis of, what appears to be, fallacious logic, as to why special bench is required to be constituted in this case. Such an approach cannot meet any judicial approval, including by this forum. We deprecate this kind of an approach.
Issues Involved:
1. Justification of the Principal Commissioner of Income Tax (Pr. CIT) in rejecting the stay petition. 2. Adherence to binding judgments of the jurisdictional High Court by the Pr. CIT. 3. Maintainability of the appeal before the Tribunal. Issue-wise Detailed Analysis: 1. Justification of the Principal Commissioner of Income Tax (Pr. CIT) in rejecting the stay petition: The appellant challenged the correctness of the order dated 16th November 2018 by the Pr. CIT-25, Mumbai, which directed the appellant to pay 20% of the demand as per Circular No. 1914 r.w. on dt. 29-02-2016. The appellant argued that the Pr. CIT was not justified in rejecting the stay petition filed before him. The Tribunal noted that the appeal was against the order passed by the Pr. CIT under section 220(6) of the Income Tax Act, 1961, and emphasized that the order under section 220(6) is not an appealable order before the Tribunal. 2. Adherence to binding judgments of the jurisdictional High Court by the Pr. CIT: The appellant contended that the Pr. CIT-25, Mumbai, failed to follow the binding dictum of the jurisdictional High Court judgment in the case of Bhupendra Murji Shah v. Dy. CIT & Ors. 170 DTR (Bom) 423, and another judgment reported as Nu-Tech Corporate Services Ltd. v. ITO (2018) 171 DTR (Bom) 201. The Tribunal observed that the judicial precedents cited by the appellant pertained to orders passed by the Commissioner of Income Tax (Appeals) under section 250(6) of the Act, which are specifically appealable under section 253(1)(a). However, the present case involved an order passed by the Pr. CIT under section 220(6), which is not an appealable order before the Tribunal. 3. Maintainability of the appeal before the Tribunal: The Tribunal focused on the maintainability of the appeal and noted that the appeal was against an order passed by the Pr. CIT under section 220(6) of the Act. The Tribunal highlighted that section 253(1) and (2) of the Act specify the kinds of orders against which appeals can be filed before the Tribunal, and orders under section 220(6) are not included in this list. The Tribunal emphasized that the right to appeal must be a specific right conferred by the statute and cannot be assumed or inferred. Consequently, the Tribunal concluded that the present appeal was not maintainable. The Tribunal further explained that section 220(6) deals with the powers of the Assessing Officer for granting stay during the pendency of the first appeal and not with the powers of the Pr. CIT. The Tribunal referred to the Supreme Court's observation in the case of ITO Vs M K Mohd Kunhi [(1969) 71 ITR 815 (SC)], which clarified that the Appellate Tribunal has the power to grant stay as incidental or ancillary to its appellate jurisdiction. However, the Tribunal noted that the stay under section 220(6) can only be granted by the Assessing Officer, not by the Pr. CIT. Therefore, the Tribunal concluded that the order passed by the Pr. CIT, declining the stay on collection of demand, was an administrative order and not an appealable order before the Tribunal. Conclusion: The Tribunal dismissed the appeal, stating that it was not maintainable and imposed costs of ? 10,000 on the appellant. The Tribunal also expressed disapproval of the appellant's approach, noting that the appellant did not attend the court proceedings further and submitted a note requesting the constitution of a special bench, which the Tribunal found to be based on fallacious logic. The judgment was pronounced in the open court on the 11th day of October, 2019.
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