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TMI Blog2009 (4) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner. Govind Saran for the respondents. JUDGMENT 1. On the oral prayer learned counsel for the petitioner is permitted to implead the Central Board of Direct Taxes as respondent No. 4 in the array of the parties to the writ petition. 2. Heard Sri Shubham Agarwal, learned counsel for the petitioner and Sri Govind Saran, learned standing counsel for the respondents. 3. The petitioner submitted that against the assessment she has filed an appeal before the Commissioner of Income-tax (Appeals), Kanpur, i.e., respondent No. 3 along with a stay application in January, 2009, but no order on her stay application has been passed by the appellate authority till date and in the meantime respondent No. 2 is proceeding to recover the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipathi v. CIT [1994] 208 ITR 461. He also submits that it is not proper for the appellate authority to sit tight over the stay application but he is obliged to pass order in accordance with law within a reasonable time failing which a mandamus can be issued by this court compelling him to discharge his duties expeditiously. In support of the contention he placed reliance on the hon'ble single judge's judgments of this court in Shivangi Steels P. Ltd. v. CIT (Asst.) [2004] 266 ITR 62 (All); [2003] UPTC 814 and Tin Manufacturing Company of India v. CIT [1995] 212 ITR 451 (All). 6. There is no quarrel with the proposition advanced by the learned counsel for the Revenue that on the mere asking an interim order should not be passed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that would not confer jurisdiction upon the authority concerned to sit tight and choose not to pass any order whatsoever on the stay application. So far as the power of stay of the Commissioner of Income-tax (Appeals) is concerned, in our view, the law laid down by the apex court in the case of ITO v. M. K. Mohammed Kunhi [1969] 71 ITR 815 and a Division Bench of this court in Prem Prakash Tripathi v. CIT [1994] 208 ITR 461, clinches the issue in favour of the proposition advanced by the petitioner. We have no manner of doubt that the stay application is maintainable and the Commissioner of Income-tax (Appeals) does possess power to pass an interim order which he has to consider judiciously in accordance with law. We, therefore, dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llustrate the various reasons for delay but we will be failing in our duty if we refrain from showing our concern for such callousness on the part of the Revenue authorities in sitting fight over the stay application compelling the assessee to run to the High Court by filing writ petition simply to get an order for expeditious disposal of the application for interim order. If they have some justification for not deciding the stay application for some time, it would be in the fitness of things that in such cases, the assessing authority, if it has received the information that the assessee has approached the appellate authority by filing appeal along with the stay application which is pending, must await the recovery till the decision is tak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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