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TMI Blog2016 (3) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the petitioner to this effect has been considered in accordance with law but at the same time it is found that the petitioner has not brought any material whatsoever to the knowledge of the assessing authority. Although the petitioner has also made a reference to some circulars issued by CBDT but the same are not filed before the Court nor before the assessing authority, therefore, the Court has no choice except to interpret the intention of legislation from its plain reading. In civil disputes Order XLI Rule 5 and 6 Code of Civil Procedure, 1908 specifically confer jurisdiction on the appellate court or the court passing the decree for stay of orders/decree appealed against or for imposing conditions to secure the ends of justice. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shall abide by to the outcome of the appeal. - Misc Bench No. 2238 of 2016 - - - Dated:- 3-2-2016 - Amreshwar Pratap Sahi And Attau Rahman Masoodi, JJ. For the Appellant : Pradeep Agrawal For the Respondent : Manish Misra JUDGMENT ( Delivered by Hon'ble A. R. Masoodi, J. ) Heard Sri Pradeep Agarwal, learned counsel for the petitioner and Sri Manish Misra, learned counsel who has accepted notice on behalf of the respondents. By means of this writ petition, the petitioner has assailed the recovery notice issued by the assessing officer on 3.11.2015 in respect of the amount due for the assessment year 2012-13. The contention of the learned counsel for the petitioner is that the petitioner has already filed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g interim stay under the appellate jurisdiction, can it be said that such a jurisdiction is either ancillary or incidental to the appellate power under Section 246 or 246-A particularly when Section 220(6) of the Act regulates the situation in a different manner. The assessing officer, it is provided under the Statute, while the appeal remains undisposed of, may impose the conditions as he thinks fit in the circumstances of the case so as to treat the assessee as not being in default in respect of the amount in dispute. The plain reading of Section 220(6) of the Act rather imposes a restriction on the appellate authority not to entertain any interim stay application leaving the matter open to be dealt with by the assessing authority duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions by the first appellate authority under Section 246 or 246-A, keeping in view the law laid down by the apex court in the case of ITO V. M. K. Mohammed Kunhi (1969) 71 ITR 815, wherein the following observation has been made: But the Appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction. The apex court in the decision mentioned supra while dealing with the provision of Section 255 (5) of the Act, opined that once the tribunal had an authority to regulate its procedure to deal with the appeals, in that situation the power to grant stay can be read as incidental or ancillary to its appellate jurisdiction. The situation in the present case is different inasmuch as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to above is not the correct proposition of law and is contrary to the legislative intention. The scheme of the Act provides a specific remedy under Section 220 (6) and the same having not been invoked by the petitioner in the present case, does not entitle him to the protection as has been prayed for on the ground of mere pendency of the appeal or till the disposal of interim stay application. From the perusal of impugned notice dated 3.11.2015, we do find that the assessing authority has not considered the aspect of the pendency of appeal nor the grievance raised by the petitioner to this effect has been considered in accordance with law but at the same time it is found that the petitioner has not brought any material whatsoever to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore us, does appear to have led to the incorporation of Rule 35-A in the Rules of 1963 but no such amendment was made in pursuance of the apex court judgement incorporating any such provision which may authorise the appellate authority at the stage of proceedings under Section 246 or 246-A to pass an interim stay order. The position of law becomes further doubtful when it is noticed that the writ petition in the case of Prem Prakash Tripathi (supra) was dismissed, as such a direction issued therein becomes binding merely between the parties and is not a judgement in rem. On the other hand, looking to the scheme of the Act and law laid down by the apex court in the case of Assistant Collector of Central Excise v. Dunlop India Ltd. (1985) 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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