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TMI Blog2012 (12) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... f six months or till disposal of appeal, whichever is earlier, vide order dated 1st May, 2012 in stay application no. 105/Del./2012. 2. It is mentioned in the stay application that on an application filed by the assessee for stay of demand of Rs.88,55,21,418/- as a result of demand raised on account of T.P adjustment of Rs.68,15,17,853/- and disallowance of Rs.102,17,16,483/- u/s 40(a)(i) of the Income-tax Act, 1951 [hereinafter referred to as the 'Act'], the ITAT vide their aforesaid order dated 9th December, 2011 stayed the demand upto 30.04.2012 or until disposal of the appeal, whichever earlier subject to payment of Rs.12 crore in two instalments of Rs.6 crore each to be pay by 15th December, 2011 and an equivalent amount upto 10th Jan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this total period of stay shall exceed 365 days, the ld. AR relied upon the decision dated 28th September, 2012 in stay application nos.177 to 183/Del./2012 in I.T.A. nos. 3696 to 3702/D/2009 in the case of Qualcomm Incorporated. On the other hand, the ld DR vehemently opposed the request for extension of period of stay and contended that the ITAT did not have power to grant stay beyond the period of 365 days stipulated in third proviso to sec. 254(2A) of the Act, as held in the decision of Hon'ble Karnataka High Court in CIT Vs. M/s Ecom Gill Coffee Trading Pvt. Ltd. in I.T.A. no.160 of 2012. 5. We have heard both the parties and gone through the facts of the case. We find that stay initially granted vide order dated 9th December, 2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to adopt that view which appeals to it. In Narang Overseas (P) Ltd. vs. ACIT, 111 ITD 1 (Mumbai)(SB), it was observed that in the event of cleavage of opinion amongst different High Courts and there being no decision of the jurisdictional High Court on the issue view favourable to the assesses has to be adopted . 6. Even otherwise, Hon'ble Apex Court categorically held in ITO v. M. K. Mohammed Kunhi [1969] 71 ITR 815, thai the right of appeal is a substantive right and questions of fact and law are at large and are open to be reviewed and decided untrammelled by any restrictions or inhibitions. By quoting with approval some of the earlier decisions and principles laid down therein, the Hon'ble Supreme Court approved the axiomatic princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es raising very large demands and if the Appellate Tribunal is entirely helpless in the matter of stay of recovery, the entire purpose of the appeal can be defeated if ultimately orders of the departmental authorities are set aside........ It is a firmly established rule that an express grant of statutory power carries with it by necessary implications the authority to use all reasonable means to make such grant effective (Suthernland's Statutory Construction, third edition, Articles 5402 and 5402). The powers which have been conferred by Section 254 on the Appellate Tribunal with widest possible amplitude must carry with them by necessary implication all powers and duties incidental and necessary to make the exercise of those powers fully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s where the assessee has co-operated with the Tribunal to its full extent and the hearing is in progress. We, therefore, are of the considered view that the Tribunal has power to grant a further stay on the expiry of six months of earlier stay if the facts and circumstances so demand." 6.2 In nutshell, the inherent jurisdiction of the Tribunal to grant Interim relief so as to make the ultimate relief effective cannot be curtailed indirectly by Sub-section (2A) of sec. 254 of the Act. At the end of the period of 365 days when the appellant makes an application for extension of the stay, the Tribunal can always consider whether there is any change in the circumstances which would justify extension or modification of the stay The Revenue gets ..... X X X X Extracts X X X X X X X X Extracts X X X X
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