1976 (4) TMI 71 - AT - Income Tax

Summary

Issues Involved:
1. Whether the Tribunal had the power to entertain a second stay application and pass an order on it.
2. Whether the order dated 4th March 1976 amounted to a review of the earlier order dated 2nd February 1976.
3. Whether the Tribunal's order dated 4th March 1976 was a nullity in law and required rectification.

Detailed Analysis:

Issue 1: Power to Entertain Second Stay Application
The Tribunal noted that the second stay application was filed on 2nd March 1976 due to changed circumstances, including the Tax Recovery Officer's order on 19th February 1976, which was not available when the first application was rejected. The Tribunal held that there is no legal bar preventing an assessee from filing a second stay application if the first one was rejected. The Tribunal emphasized that it has inherent jurisdiction to decide on such applications, especially when new facts or circumstances arise. The Tribunal stated, "Under law, there is no bar that if the first application for stay of demand was rejected by the Tribunal, the assessee cannot move a second application."

Issue 2: Review of Earlier Order
The Tribunal clarified that the order dated 4th March 1976 was not a review of the earlier order dated 2nd February 1976 but a fresh order based on a new application. The Tribunal pointed out that the second application included new facts, such as the decision of the Tax Recovery Officer and the legal principles from Mulla's "Principles of Hindu Law" and the Supreme Court decision in Janak Raj vs. Gurdayal Singh. The Tribunal stated, "The Tribunal has not reviewed its order dated 2nd February 1976 but actually passed a fresh order on the second stay application."

Issue 3: Nullity and Rectification
The Tribunal rejected the Department's contention that the order dated 4th March 1976 was a nullity and required rectification. The Tribunal emphasized that it had jurisdiction to pass the second order, considering the new facts and circumstances. The Tribunal noted that the Department failed to provide any authority to support the claim that the Tribunal lacked jurisdiction to entertain the second application. The Tribunal concluded, "The present application moved by the Department is not at all maintainable."

Additional Observations:
- The Tribunal highlighted that the objections of the coparceners were disposed of by the competent authority on 19th February 1976, which was a significant change in circumstances.
- The Tribunal emphasized that the balance of convenience was in favor of the assessee, as the property was already under attachment, and its rent was being realized by the Department. The Tribunal noted, "If the auction was postponed, the Revenue would not suffer any loss. On the other hand, if the auction was not stayed and the same was allowed to be confirmed, the assessee would have suffered irreparable loss."

Separate Judgment by Anand Prakash:
Anand Prakash, Accountant Member, concurred with the rejection of the Department's application but dissociated himself from the detailed merits of the two orders. He focused on whether the second order was a nullity and whether it amounted to a review. He emphasized that an order on a stay application is interlocutory and transient, intended to meet specific situations as they develop. He stated, "There is no provision of law which prohibits an assessee from appealing to the inherent powers of the court in this matter more than once."

Conclusion:
The Tribunal concluded that the second stay application was maintainable, the order dated 4th March 1976 was not a review of the earlier order, and the application by the Department lacked substance and merit. Consequently, the application was rejected.