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TMI Blog1998 (6) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3. The appeal shall come up for hearing on 16-1-1997. If the assessee prays for adjournment on the date of hearing, the Bench may at its discretion withdraw the stay and also the early hearing. 4. The stay is valid upto 30-4-1997 or the disposal of the appeal whichever is earlier." 2. As ordered by the Bench in the aforementioned stay order, the appeal was listed for hearing on 16-1-1997 but was adjourned to 11-2-1997 as the Bench did not function on that day. It was adjourned to 10-4-1997 from 11-2-1997; and again on that day the Bench did not function. It was adjourned and reposted to 13- 5-1997 on which day Miss Mala, C.A. from M/s. Fraser Ross C.As. appeared and argued the appeal. After making some progress in the case that is to say after partly hearing the argument the case was adjourned to 27-5-1997 as some particulars were required by our learned Brothers who constituted the Bench on that date. On 27-5-1997 it was adjourned to 10-6-1997 with a direction to the Registry to club the appeal filed by the assessee for the asst. year 1991-92. At the request of the assessee's counsel Shri R. Vijayaraghavan, the appeal was adjourned to 11-6-1997. On 11-6-1997 again the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeals for expeditious and out of turn hearing. This practice is being followed perhaps because the tax demand will remain blocked for considerable long years if the stay granted appeals are heard in strict seriatim and chronology maintained by the Registry. As per Rules of Administration of Justice, all appellants should be heard in strict seriatim, that is to say in the order and manner in which they have approached this Tribunal for justice. However, this golden rule of Administration of Justice is not being followed in stay granted cases by several Benches of this Tribunals. In this case the stay for the assessment year 1992-93 as per order dated 10-12-1996 in S.P. No 70(Mds.)/96 expired on 30-4-1997 and therefore as per the cardinal rules of administration of justice the appeal should not have been heard on 13-5-1997 by our learned Brothers who constituted the Bench on that day. Nonetheless the same was partly heard and posted to 27-5-1997 on which day it was made de- part heard and the case released by our Brothers with a direction to the Registry to post it on 10-6-1997. With respect to our learned Brothers we are of the opinion that when the stay had expired and lapsed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted demand. 8. This Petitioner-assessee having failed to comply and obey the orders and directions of this Tribunal as contained in order dated 10-12-1996 in S.P. No. 70(Mds.)/96 cannot and should not be heard expeditiously on priority or out-of-turn basis. The objection of the Deputy Registrar of this Tribunal is therefore perfectly valid and cannot be brushed aside. We have studied the facts and grounds of appeal for all the three assessment years and we do not find any special feature requiring expeditious and preferential out-of-turn hearing. There appears to be no imminent threat, distress or hardship to the petitioner/assessee if all the three appeals are not heard and imposed off on priority and out- of- turn basis. 9. We therefore order as under: (i) There shall be no extension of stay when as it has lapsed on 30-4-1997; (ii) The appeals of the Petitioner/assessee for Assessment years 1991-92 to 1993-94 should not be heard on 12-8-1997 as ordered earlier by this Bench. 10. We further direct the Registry Officials to take out the appeals of the appellant-assessee for the assessment years 1991-92, 1992-93 1993-94 from out of the priority appeals list and let the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench in which the Hon'ble Vice-President was constituting the Bench. I may mention that none of the parties is aggrieved by any of these judicial proceedings recorded. In my opinion, we are not competent to go into the correctness or otherwise of the judicial proceedings of the case nor the present application which is posted for hearing entitles us or gives any liberty to go into all those things. However, strange or interesting the judicial functions of the Bench may be, we are not sitting over to comment upon those judicial actions of the Bench. In fact, as per rules and conventions, the Vice-President is entitled to order the consolidation of the cases and post the same for hearing. All these discussion, in may view, will only prejudice our mind to dispose of the assessee's present application seeking extension of stay which got expired on 30-4-1997 in terms of the order of the Tribunal. As the records reveal, the case could not be disposed of before 30-4-1997 for no fault of the assessee on its part. The case got adjourned from time to time because the particular Bench was not functioning on those relevant dates. Due to vacancies in the Tribunal and non-availability of suffi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able of removing injustice and is expected to do so. Drawing support from this judicial principle, I extend the stay upto 31-8-1998 or till the disposal of the appeal whichever is earlier. In fixing this limit, I have taken into consideration the likely time that may be taken for disposal of the present dissent, in accordance with law. 3. Before parting with this, I may deal with the note of the Deputy Registrar of the Tribunal dated 31-7-1997 regarding the non-compliance of certain conditions of the stay order. In my view, the same should be considered by a Bench when the matter is getting heard. The note of the Deputy Registrar is directed to be kept on the file for consideration of the Bench posted with these appeals. 4. Now I propose to deal with the order of the learned Judicial Member wherein he has vacated the appeals from the priority appeals. According to him, the appeals shall no longer be priority appeals. With respect, I do not agree with this view. In may view, we should confine ourselves to the prayer made in the present application and not extend the scope by going into the matter that is not prayed for by either of the parties. The fact that 22,000 appeals are p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tay as was granted by the Tribunal vide its order dated 10-12-1996 because the stay as was granted was time bound that it was to expire on 30-4-1997 or on the date of the order on appeal whichever is earlier. The said application was heard on 1-8-1997 by my learned colleagues but, they could not agree on the conclusion to be reached on the said application. Consequent to the disagreement between my learned colleagues on the application Hon'ble President of the Tribunal within the powers conferred on him by section 255(4) of the Income- tax Act, 1961 (hereinafter referred to as the Act), had directed me to resolve the disagreement as brought out by my learned colleagues in the shape of the following question. "Whether on the facts and in the circumstances of the case, the assessee's prayer for extension of stay is fit to be granted and whether or not the appeal should be listed as priority appeal in terms of the earlier orders of the Tribunal?" Mr. Vijayaraghavan along with Ms. Mala represented the assessee during the hearing before me for resolving the disagreement. The Departmental Representative who was deputed to represent the Department for this hearing was arguing one othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand in monthly instalment of Rs. 10 lakhs beginning from 31-12-1996. The first instalment shall be paid on or before that date and shall produce proof of such payment of the Registry. 2. In respect of the balance of arrears the assessee shall produce suitable security to the satisfaction of the Assessing Officer and the assessee shall report about the compliance to the Registry. 3. The appeal shall come up for hearing on 16-1-1997. If the assessee prays for adjournment on that date of hearing, the Bench may at its discretion withdraw the stay and also the early hearing. 4. The stay is valid up to 30-4-1997 or the disposal of the appeal whichever is earlier." The appellant had paid two instalments each of Rs. 10 lakhs on 31-12-1996 and 11-2-1997 and the balance of Rs. 4,45,632 on 31-3-1997. The photocopies of the challans were filed with the Registry only on 19-5-1997. The appellant company had not strictly complied with the first direction of the Tribunal of making the monthly payments starting with Dec. 1996 and ending with Feb. 1997 and had delayed the second and the third instalment. The appellant further had conveniently not complied with the second direction of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had the effect of stay of tax being allowed partly with some tax directed to be paid and the balance to be secured to the satisfaction of the AO, the appellant loses all its rights for extension of the stay on the same terms and conditions. One can plead that it having complied with the direction of the Tribunal, and the Tribunal not having taken up the hearing or having taken up the hearing but not yet concluded the hearing while the stay had expired, it should not be placed at a disadvantageous position for no fault of the assessee. Extending sympathy to assessee's who show no respect to the direction of the Tribunal, is like a self goal and would only make other assessee's feel that they could get away without complying the direction of the Tribunal. The assessee in the instant case having not complied with the direction of the Tribunal has lost its face by its conduct and therefore deserves only to be dismissed. I agree with this part of the conclusion of learned JM. On the second limb of the question, I with to bring some facts. The appeal that was adjourned a few times because the Bench could not be constituted was heard on 13-5-1997. On this day the Departmental Represent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther when the JM himself has observed that the early hearing is given to expedite in the settlement of high demand appeals, and when the appeal hearing had already commenced, it would not be justified to take it off the priority list. It would have been totally a different matter when the appeal is to be heard only after the compliance of the stay order is shown to have been made, and on being objected to by the Department that the appeal should not be given a preferential treatment, the Bench may if the circumstances warrant decide to treat the appeal as any other appeal to be placed on board on serial order basis. All Judicial Courts including the Tribunal follow the serial order for hearing of the cases but, on matters that are related to the stay of tax having been granted, it is a judicial practice to treat those appeals as priority appeals because otherwise the granting of stay confers no meaning. However in the present case because the assessee has not complied with the second part of the order namely the provision of security to the satisfaction of AO, this could be a sufficient ground for not only refusing further stay on tax demand and to take the appeal off the list of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more than one year. The Vice-President in the exercise of his power of constituting the Benches that is derived from the President has to exercise the power of deciding about the cases that are to be heard by a Bench which is invariably related to grouping of cross appeals, cross objections, appeal of other years involving identical issues, appeal of one year having a bearing on another year because the facts of one year continue to run into the successive year and so on. Unless the President by an order in writing has further delegated power of allowing or not allowing any prayer for bunching and grouping of appeals to every Member of the Tribunal, no Member of the Tribunal could walk into this territory and provide any direction to any Bench or to the registry. Such an action by any Member is usurpation of the power of the Vice-President or the Senior Member to whom the President had delegated the power. As had been observed earlier the issue of bunching of the appeal of the preceding assessment year with the appeal related to the present petition is not part of the either the stay petition or the present petition and is clearly foreign to the present proceeding. Further ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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