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TMI Blog1976 (4) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... or stay of the auction by the Hon ble Tribunal. (iii) The Hon ble Tribunal have, however, stayed the auction of the property which it is not competent to do in view of the clear provisions of Rule 86 of the Second Schedule. Without prejudice to this, the Tribunal s order in question amounts to a review of its earlier order passed on 2nd February, 1976. It is established law that there is no power of review vested in the Income-tax Appellate Tribunal. (iv)The order passed by the Hon ble Tribunal on 4th March, 1976 being obviously erroneous, the same requires to be suitably rectified so that the order passed on 2nd February, 1976 is restored." 2. On behalf of the Revenue it was contented that the order of the Tribunal dated 4th March, 1976 amounted to review of its earlier order dated 2nd February, 1976. According to the learned Departmental Representative, the Tribunal has no power to review its earlier order. In this connection reliance was placed on the ratio of decision in the case of Commissioner of Income-tax, Madras vs. S. Devaraj(1). Thus it was submitted that after the passing of the order by the Tribunal on 2nd February 1976, the Tribunal on the same facts on 4th Marc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were disposed of only on 19th February 1976. It was further contended that the Tax Recovery Officer in his order observed that the property in question belonged to Shri. Hanumam Sahai Chaudhri exclusively. Thus it was contended that it is wrong to say that there was no change in the circumstances of the case when the Tribunal passed the second order. 5. It was further contended that the Tribunal has jurisdiction to pass order on the second stay petition and as such it is wrong to say that the second order passed by the Tribunal is a nullity. 6. We have heard the parties and perused the entire material available on the record. The assessee on 2nd March 1976 filed stay application and inter alia stated as under: "(1) That on 2nd February 1976, this Hon ble Tribunal was pleased to refuse granting of stay against recovery sought to be pressed through attachment of House No. B-13, New Grain Mandi, Chandpole, Jaipur by accepting the submission of the applicant that the said property belonged, not to the appellant but to the H.U.F. of which the appellant is a member. (2) That on the objection of two of the members of the HUF other than your applicant, raised before the learned Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ass order on the objections filed by the coparceners. (2) The Tax Recovery Officer while passing order on 19th February 1976 on the objections of the coparceners held that the property belonged exclusively to the assessee namely, Shri Hanumansahai Choudhary. This finding was not available before the Tribunal when the earlier stay petition was rejected. (3) The second stay petition was field on 2nd March 1976 and on that very day at about 2 P.M. the property was to be auctioned. 8. Apart from the aforesaid facts, when the first stay petition was argued by the then counsel of the assessee s. 289 of Hindu Law by Mulla (14th Edition) was never brought to the notice of the Tribunal. When the second stay petition was argued, the said section was read over and explained to us at the time of hearing. When the first stay petition was argued the decision reported in the case of Janak Raj (2), was not pointed out to us. At the time of arguing second application, the said decision was brought to our notice and relevant portion was also read out. On these facts it is to be seen whether the Tribunal has reviewed its earlier order or the Tribunal passed a separate order on the second applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by the Tribunal, the assessee has every right to move second stay application for the stay of recovery of demand in question. Thus we are of the confirmed view that the assessee had right to move the second stay petition and the Tribunal has full jurisdiction to decide the stay petition and in fact, the Tribunal after considering all the facts as existing at that time passed suitable order. 12. In our opinion, the contention of the learned Departmental Representative that the order of the Tribunal dated 4th March, 1976 amounted to review of its earlier order could hardly be accepted. The Tribunal has not reviewed its order dated 2nd February 1976 but actually passed a fresh order on the second stay application. 13. When the assessee files second application for stay he Tribunal, in exercise of its powers will have to pass some order on such petition. So, by no stretch of imagination, the second order passed by the Tribunal amounted to review of its earlier order. 14. We would like to point out some of the important facts of this case at this stage. The other coparceners moved applications before the Tax Recovery Officer under R.11 of the Second Schedule to the Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sposed of by the competent authority. At the time of arguments it was brought to our notice that against the orders passed by the Tax Recovery Officer the aggrieved party has already given notice to the Government u/s. 80 C.P.C. If the aggrieved party wanted, they could also have filed appeals before the competent authority. It was submitted before us that the assessee did not file objection before the Tax Recovery Officer. 16. It is common ground that against Shri Hanuman Sahai Chaudhary, assessment under s. 144 of the Income-tax Act, 1961 was made raising a demand of Rs. 13,32,904. The assessee moved an application u/s.146 of the Act before the Income -tax Officer. It was rejected. The assessee had field appeals before the Appellate Assistant Commissioner against the assessment order under s. 144 and also against the order under s. 146 of the Act. Both the appeals were dismissed by the Appellate Assistant Commissioner and against those appeals are pending before us. 17. It is also common ground that in pursuance of recovery of such demand, the immovable property has been attached and rent from the said property is being realised by the department regularly. 18. According to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty did not belong to the H.U.F. but belonged to the assessee. After this order, the assessee has further cause of action to come to the Tribunal and to put forth his claim which was not accepted earlier by the Tribunal. Either the property belonged to the assessee or to the H.U.F., assessee has interest in the property and when the interest of the assessee could be attached in pursuance of recovery of demand in question, the interest of the assessee shall be affected if the property in question was allowed to be auctioned. 22. We may further point out that the property is already under attachment and its rent is being realised regularly by the Department. So 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 irrepairable loss which could not be compensated in terms of money. The balance of convenience was also in favour of the assessee. The Tribunal, after considering all these facts was of the view that it was a fit case in which the auction of the property should be stayed. 23. If we consider the aforesaid facts it is clear that when th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint of time, and the rival submissions made then. 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. The Tribunal is under an obligation to pass a suitable order on every application presented to it. It cannot, therefore, be said that the Tribunal did not have jurisdiction to entertain the fresh application of stay. A fresh order with reference to this had to be passed. What this order would be is for the Court to decide after hearing the two sides. Such as order may be in conformity with the earlier order or different from it. In either case, it will not be a review of the former order, both of them would be independent orders, may be on the same subject matter of stay , but passed at separate points of time in the light of the facts then obtaining and the rival submission then made. After all, every day cases come up in the courts when stay refused earlier, is granted later or granted earlier is revoked later. Such orders are not reviews of the earlier orders but are intended to meet the developing situation at different points of time pending the decision on the litigation. I am, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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