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TMI Blog2018 (4) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... eal by the CIT(A) finding the submission of the Petitioner not acceptable, either wholly or partly, it would result in the demand being sustained wholly or in part, which could then be collected in accordance with law. But the entire exercise, here, appears to be only to assist the Revenue to collect some amount of taxes prior to 31st. March 2018. This is certainly not expected of an Appellate Authority such as the CIT(A) who adjudicates disputes between the Revenue and the Assessee on a regular basis. The CIT(A) must not only be fair but appear to be so, in a country governed by Rule of law. In the absence of the above, the alternative remedy provided under the Act would be illusory leading to our entertaining writ petitions, even if an alternative remedy is provided under the Act. We set aside the order dated 23rd March, 2018 passed by the CIT(A) on the Petitioner's stay application. We direct the Respondent-Revenue not to initiate any recovery proceedings against the Petitioner till such time as the CIT(A) – Respondent No.3 disposes of the Petitioner's appeal from the order dated 31st December, 2017 of the Assessing Officer Respondent No.2 and for a period of two weeks after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable by the Petitioner, for Assessment Year 2015-16; (b) Being aggrieved with the above order dated 31st December, 2017, the Petitioner filed on 17 January 2018 an appeal under Section 246A of the Act to the CIT (A). The petitioner has after filing of the appeal to the CIT(A) had also made an application on 26th February, 2018 to the DCIT(E) Respondent No.2 seeking a stay of the demand under Section 220(6) of the Act. The petitioner also sought to invoke the inherent powers of the appellate authority and by application dated 26 February 2018 to the CIT(A) sought a stay of the order dated 31st December 2017 till the disposal of the appeal. This for the reason that according to the petitioner the issue on merits was covered in its favour by the decisions of the Income Tax Appellate Tribunal(Tribunal). Therefore to the above extent the impugned order was without jurisdiction; (c) On 14th March, 2018, the Petitioner received an undated notice from the office of the CIT(A), indicating that its appeal from the order dated 31st December, 2017 of Respondent No.2 has been fixed for hearing on 20th March, 2018 at 11.30 a.m; (d) On 20th March, 2018, the Petitioner attended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner to sign the order sheet of the stay application as 20th March, 2018. Petitioner did as they were directed to do; (h) On 22nd March, 2018, Petitioner's CA received a call from the office of the Commissioner of Income Tax [Exemption](CIT[E]) i.e. Respondent No.4, directing the Petitioner to deposit at least ₹ 20 Crores before 31st March, 2018. Further, the office of Respondent No.4 i.e. CIT[Exemption] informed the Petitioner that failing to deposit the amount of atleast ₹ 20Crores would lead not only to the attachment of the Petitioner's bank accounts but also reopening of the Assessment for the past two Assessment Years; (i) Thereafter, at 4.30 p.m. on 22nd March, 2018, Petitioner's CA received a call from the office of the CIT(A). The call directed the Petitioner to remain present before him on 23rd March, 2018 with reference to the stay application; (j) On 23rd March, 2018, the stay application was again heard by the CIT(A) in spite of the Petitioner's protest that no hearing on the said stay application is necessary and order on the main appeal should be passed. At the conclusion of the hearing, Petitioner was informed that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the learned counsel for the Revenue has disputed the allegations by stating that if the date was wrongly mentioned there was no compulsion to sign the same. We could have asked for a response from the CIT(A) and CIT[E] to the allegations in the petition, considering the fact that the petition has just been filed yesterday. However it would be best if the Central Board of Direct Taxes (CBDT) carry out the necessary investigation on the above allegations and if there is truth in it, it would take corrective action on the same. This is particularly because this conduct alleged on the part of the CIT(A) and the office of the CIT[E] appears to us to be an aberration, as normally we have noted that the officers Revenue do administer the Act with fairness and with loyalty to the Act. Therefore if the allegation in the petition are correct, then such failures on the part of its Officers needs to be corrected by the CBDT before it becomes the norm. Failing corrective measures by the CBDT, would only result in our entertaining petitions from orders under the Act as the alternative remedy would cease to be an efficacious remedy, if such arm twisting measures dehors application of the law, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers effective( see Apex Court observations in ITO v. M.K. Mohd. Kunihi 71 ITR 815 ). This would includes a power to stay the effect of the order impugned before the appellate authority till the disposal of the appeal before it. This power is only in aid of the power to hear and dispose of the appeal by the Appellate Authority. This necessity of exercising inherent power of staying the order challenged before the appellate authority comes to an end, when the appellant has been heard finally on merits of its appeal, as now the appeal itself can be disposed of finally. The distinction between the powers to be exercised by the appellate authority and the Assessing officer under section 220(6) of the Act was adverted to by us while rejecting the petitioner s challenge in Writ Petition No. 903 of 2018 to the order dated 31 December, 2017 of the respondent no. 2 (now in challenge before the CIT(A)). The challenge in the above petition was that, the order dated 31st December, 2017 of Respondent No.2 herein, is without jurisdiction, as it is in defiance and contrary to the binding decision of the Income tax Appellate Tribunal, when we observed in paragraph No.7, as under: 7: The re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f CIT(A) that the hearing of the appeal is fixed on 20th March, 2018 at 11.30 a.m. Petitioner attended the hearing and made submission and at the conclusion of hearing, an order sheet was also signed, indicating that the hearing of the appeal was completed. In spite of the aforesaid conclusion of the hearing of the appeal, the CIT(A) sought to hear the petitioner on its stay application leading to the order dated 23 March 2018 directing a conditional stay on certain amounts being paid to the Revenue. 12. In our view, once the hearing on the appeal is concluded then the stay application as filed becomes infructuous as the appeal itself would stand disposed of by an appropriate order of the CIT(A). The submission on behalf of the Revenue that mere commencement of final hearing of the appeal by the CIT(A) will not prevent him from taking up the stay application and passing an order thereon is in the present facts without merit. This is particularly so as on consideration of the appeal, the CIT(A) was of the view that the disposal of the appeal would take some time and, therefore, in the meantime, grant of unconditional stay would not be justified, then, it would find mention in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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