1982 (4) TMI 85 - AT - Income Tax

Summary

Issues:
1. Maintainability of stay petition after the decision of the appeal by the Appellate Tribunal and during the pendency of the reference application.
2. Jurisdiction of the Appellate Tribunal to grant stay during the pendency of the reference application.
3. Merits of the prayer for stay.

Detailed Analysis:

1. The issue of the maintainability of the stay petition after the decision of the appeal by the Appellate Tribunal and during the pendency of the reference application was raised. The Appellate Tribunal acts as a civil court for certain purposes specified in the Income-tax Act, but the power to stay proceedings relating to the recovery of penalty or tax due from an assessee is not expressly conferred upon the Tribunal by the Act or the Income-tax Appellate Tribunal Rules, 1963. The Tribunal cannot invoke inherent powers of a civil court for granting stay. The Tribunal's powers are different from those of High Courts and the Supreme Court, and no provisions allow for stay after the appeal has been disposed of, pending only a reference application under section 256(1) of the Act.

2. The jurisdiction of the Appellate Tribunal to grant stay during the pendency of the reference application was also considered. The Tribunal concluded that the stay petition could not be moved before the Appellate Tribunal during the pendency of the reference application before it. The Tribunal referred to precedents and rules indicating that a stay petition should be entertained only while the appeal is pending before the Tribunal and has not been decided. The Tribunal emphasized that the appeal being pending is distinct from the situation where the appeal has been disposed of, and its outcome may change based on the opinion of the High Court or the Supreme Court on a reference.

3. Regarding the merits of the prayer for stay, the Tribunal noted that the mere possibility of a reference being granted does not establish a strong prima facie case. Additionally, the inability to pay the tax penalty alone is not sufficient grounds for granting a stay of recovery. The Tribunal considered the financial position of the assessee, including the cash credit limit and outstanding amounts in the State Bank account, and found no justification for interfering with the stay of recovery ordered by the Commissioner (Central), Kanpur. The Tribunal ultimately rejected the petition for stay based on these considerations.