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TMI Blog2019 (11) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... w does not provide so. The only possibility of the Tribunal coming into picture, so far as the stay of demands during the pendency of first appeal before the CIT(A), is in a situation in which the CIT(A) rejects the stay petition filed by the assessee. That proposition too is highly contentious, to say the minimum, but let s not bother about that hypothetical situation as on now. Present appeal is not an appeal maintainable before this Tribunal. Not only that the appeal is ill conceived, but, even after pointing out the legal position, rather than explaining his stand or expressing remorse for having filed this appeal, the assessee did not even bother to attend the court proceedings any further, and submitted this note pointing out, on the basis of, what appears to be, fallacious logic, as to why special bench is required to be constituted in this case. Such an approach cannot meet any judicial approval, including by this forum. We deprecate this kind of an approach. - ITA No. 6849/Mum/18 - - - Dated:- 11-10-2019 - Pramod Kumar (Vice President) And Saktijit Dey(Judicial Member For the Appellant : None For the Respondent : V Vin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 019. The record of proceedings, for 12th September 2019, reads as follows: The assessee is required to show cause as to why the appeal not be dismissed as not maintainable. Adjourned to 17/09/2019. Both parties informed. Sd/xx Sd/xx JM VP 3. On this rescheduled date of hearing, none appeared for the assessee. There was, however, yet another letter from the learned counsel, which, inter alia , as follows: 1. In this case, the appellant has made a request to refer the matter to special bench in view of divergent opinions of two co-ordinate benches of the Hon ble Tribunal . 2. The application for early hearing filed and kept for hearing on 17- 09-2019, after adjournment, be disposed off accordingly. 4. There was, thus, not even a whisper of an argument on the maintainability of the appeal. All that has been pointed out to us is a request for reference to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d (supra) is dt. April 22, 2014 while favourable judgment of Hon'bie Delhi bench (supra) is dt. 10th April 2015 that is after the pronouncement by the Hon'ble Third Member in which this judgment of the Hon'ble Delhi Bench (supra) was noticed. 5. It is interesting to note that the appeal before us is an appeal against the order passed by the Principal Commissioner of Income Tax said to be under section 220(6) of the Act, and all the judicial precedents, referred to in the petition above, are in the context of the orders passed by the Commissioner of Income Tax (Appeals) under section 250(6) of the Act. In the case of Employees Provident Fund Organization Vs Addl CIT [(2015) 153 ITD 642 (Del)] relied upon by the learned counsel specifically notes that having held that the Commissioner of Income Tax (Appeals) has passed the order under Section 250 of the Act, in our considered opinion, the appeal is clearly maintainable under clause (a) of sub-section (1) of Section 253 of the Act . Clearly, this decision will have no application in the present context when the order is passed by the learned Principal Commissioner of Income Tax, at best under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) an order passed by an Assessing Officer under clause (c) of section 158BC, in respect of search initiated under section 132 or books of account, other documents or any assets requisitioned under section 132A, after the 30th day of June, 1995, but before the 1st day of January, 1997; or (ba) an order passed by an Assessing Officer under sub-section (1) of section 115VZC; or (c) an order passed by a Principal Commissioner or Commissioner under section 12AAor under clause (vi) of sub-section (5) of section 80G orunder section 263or under section 270A, or under section 271or under section 272Aor an order passed by him under section 154 amending his order under section 263or an order passed by a Principal Chief Commissioner or Chief Commissioner or a Principal Director General or] Director General or a Principal Director or Director under section 272A; (d) an order passed by an Assessing Officer under sub-section (3), of section 143 or section 147 or section 153A or section 153Cin pursuance of the directions of the Dispute Resolution Panel or an order passed under section 154 in respect of such order; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut it is very doubtful if the power of stay can be spelt out from that provision. In our opinion the Appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction. This is particularly so when section 220(6) deals expressly with a situation when an appeal is pending before the Appellate Assistant Commissioner, but the Act is silent in that behalf when an appeal is pending before the Appellate Tribunal. It could well be said that when section 254 confers appellate jurisdiction, it impliedly grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution and that the statutory power carries with it the duty in proper cases to make such orders for staying proceeding as will prevent the appeal if successful from being rendered nugatory . The question of stay application before the Tribunal thus normally comes into play only when the demands in question are impugned in appeal before us. That apart, the stay under section 220(6) can only be granted by the Assessing Officer, and not by his supervisory authorities such as the Principal Commissioner of Income Tax. As a matter of fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding that the CIT(A) has the powers of granting the stay in appropriate cases, approach Hon ble Court seeking directions for disposal of the stay petition. 9. The only possibility of the Tribunal coming into picture, so far as the stay of demands during the pendency of first appeal before the CIT(A), is in a situation in which the CIT(A) rejects the stay petition filed by the assessee. That proposition too is highly contentious, to say the minimum, but let s not bother about that hypothetical situation as on now. What is shown in the yellow boxes and the red dotted lines, in the flow chart given above, is the situation in which there is a controversy on the question whether the remedy against denial of stay by the CIT(A), in the absence of the Tribunal being in seisin of the matter in appeal, can be challenged before the Tribunal, besides the basic question whether the CIT(A) has the powers, at all, to grant the stay on collection or recovery of demands impugned in appeal before him. That, however, is not the controversy before us as it is the action of the PCIT, and not the CIT(A), which is in challenge before us. As for the stand taken by the PCIT, or, for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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