9911796707
TMI Blog1995 (1) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf of the respondents, and perused the material brought on record. Learned counsel for the petitioner has submitted that the reasons for rejection of the stay application accorded by the Tribunal in its impugned order dated September 30, 1994, are not at all justified on judicial principles. In support of his contention, he has invited my attention to the decision of the Supreme Court in the case of ITO v. M. K. Mohammed Kunhi [1969] 71 ITR 815. In this case the Supreme Court has interpreted that even though there is no express provision in the Income-tax Act conferring power on the Income-tax Appellate Tribunal to stay the recovery proceedings, yet it is implied by conferment of the appellate jurisdiction under section 254 of the Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rima facie case, it should grant stay of the recovery proceeding in such appropriate and deserving cases. For ready reference the relevant portion containing reasons for the impugned order is reproduced as follows: " The matter involved in this appeal which gives rise to the present stay petition relates to the imposition and recovery of penalty under section 271(1)(c) of the Income-tax Act, 1961. At the very outset, we would like to make it clear that this is not the proper stage at which the merits of levy under section 271(1)(c) can be considered. It has not been the policy of the Bench to consider the merits in a stay petition. The merits can be considered only at the time of final disposal of the appeal. Secondly, this Bench has al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings are in the exclusive domain of the executive. It appears that the Tribunal was not exercising its jurisdictional power in a judicial manner and was obsessed with the influence of the executive, even in the disposal of the judicial proceedings. It was also wrong on the part of the Tribunal to say that the stay of the recovery proceedings will not solve the problem either of the appellant or of the Department. In my view, the stay of the recovery proceedings would have brought great relief to the appellant and the Department, if so entitled, could have got its due revenue only after the disposal of the appeal, when there was a statutory right of the appellant to file the second appeal. The Tribunal has further vaguely mentioned that all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial principles and then to make a decision either to grant stay or to refuse stay of the recovery proceedings under challenge in the appeal. Since the rejection of the stay application would not amount to res judicata, the petitioner/appellant may move a second application for stay and the Tribunal shall consider the same. This court refrains from issuing a writ of certiorari for quashing the impugned order or from issuing a writ of mandamus directing the Tribunal to grant a stay order, which may not be justified on the basis of the merits of the case under scrutiny before the Tribunal. Therefore, in view of the facts and circumstances of the case, it would be appropriate that the petitioner may move another stay application before th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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