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TMI Blog2012 (6) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... IFR had also been dismissed on ground that AAIFR has no power of review and/or recall an order - relief sought for by company was really not in nature of review but to correct an error which had come into being while AAIFR passed order and, therefore, AAIFR like any other authority or Tribunal had incidental and/or ancillary powers to correct such errors. - WP(C) NO. 5438 OF 2011 - - - Dated:- 16-9-2011 - SANJAY KISHAN KAUL AND RAJIV SHAKDHER, JJ. Ms. Pooja Verma for the Petitioner. Sachin Datta and Ms. Gayatri Verma for the Respondent. JUDGMENT Sanjay Kishan Kaul, J. - The appellant being aggrieved by an order dated 11.06.2009 passed by BIFR in reference case No.32/2007 preferred appeal no.104/2010 before the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rebut the presumption by not adducing any information about the receipt of envelope which includes the order dated 11.06.2009 since the same was not found returned in the records of the BIFR. 5. The appellant moved the application being: MJA No.9/11 seeking recall of the impugned order dated 18.11.2010 of the AAIFR, which had been dismissed on the ground that there is no power of review and/or recall. The appellant had filed the application after inspection of the records of the BIFR for dispatch and incoming postal records for the relevant period and obtained certified copies of the same which showed that the envelope containing the order dated 11.06.2009 of the BIFR sent on 01.07.2009 was received back by the BIFR on 06.07.2009. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same did not bear any remark/endorsement of the postal authorities as to why the letter was not delivered, and thus, the BIFR could not specify the reason for non delivery. The affidavit also states that necessary office orders have now been issued on 07.09.2011 and 09.09.2011 in terms whereof undelivered envelopes would be kept on record so that they can be inspected and a copy of the order passed would also be supplied to the counsel/advocate/representative of the sick company as per these two office orders respectively. Thus a better system has been put in place. 10. The factual matrix referred to above, thus shows that the order sought to be impugned by the appellant before the AAIFR of the BIFR dated 11.06.2009 was never delive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not been expressly conferred upon the Appellate Tribunal to stay proceedings relating to the recovery of penalty or tax due from an assessee. At the same time it is significant that under section 220(6) the power of stay by treating the assessee as not being in default during the pendency of an appeal has been given to the Income-tax Officer only when an appeal has been presented under section 246 which will be to the Appellate Assistant Commissioner and not to the Appellate Tribunal. There is no provision in section 220 under which the Income- tax Officer or any of his superior departmental officers can be moved for granting stay in the recovery of penalty or tax. It may be that section 225, notwithstanding that a certificate has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal. If the Income-tax Officer and the Appellate Assistant Commissioner have made assessments or imposed penalties raising very large demands and if the Appellate Tribunal is entirely helpless in the matter of stay or recovery the entire purpose of the appeal can be defeated if ultimately the orders of the departmental authorities are set aside. It is difficult to conceive that the Legislature should have left the entire matter to the administrative authorities to make such orders as they choose to pass in exercise of unfettered discretion. The assessee, as has been pointed out before, has no right to even move an application when an appeal is pending before the Appellate Tribunal under s.220(6) and it is only at the earlier stage of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wered to grant an injunction, the power of punishing disobedience to it by commitment is impliedly conveyed by the enactment, for the power would be useless if it could not be enforced." [Emphasis supplied] 12.1 This view has been reiterated in Union of India v. Paras Laminates (P.) Ltd., [1990] 4 SCC 453. The relevant portion is extracted hereinbelow :- "8. There is no doubt that the Tribunal functions as a court within the limits of its jurisdiction. It has all the powers conferred expressly by the statute. Furthermore, being a judicial body, it has all those incidental and ancillary powers which are necessary to make fully effective the express grant of statutory powers. Certain powers are recognised as incidental and ancillar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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