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TMI Blog1983 (6) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent, and for the issue of a writ of mandamus directing the 2nd respondent to consider and dispose of Ex. P-2. appeal on merits and in accordance with law. This court passed an interim order in C.M.P. No. 22854 of 1981 staying further collection of tax on condition that the petitioner remits Rs. 8,000 on or before January 3, 1982. Mr. P. A. Mohammed, counsel for the petitioner, contends that the 2nd respondent, AAC, has failed to consider Ex. P-3 petition in accordance with law. According to him, Ex. P-4 is laconic and has not been passed bearing in mind the principles which should be applied in exercising his discretion According to counsel, the power vested in the 2nd respondent to stay collection of tax should be exercised judicially and taking into account all the facts and circumstances of the case. In this case, there has been no judicial disposal. The order is infirm and so should be quashed. Government Pleader raised a contention that Ex. P-4 order satisfies the requirements of law that the AAC has exercised his power taking into account all relevant matters and that the petitioner could have filed a petition before the Agricultural Income-tax Officer under the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson mentioned in the notice or order, or if a time is not so mentioned, then on or before the first day of the second mouth following the date of the service of the notice or order, and any assessee ailing so to pay shall be deemed to be in default, provided that, when an assessee has presented an appeal under section 30, the Income-tax Officer may in his discretion treat the assessee as not being in default as long as such appeal is undisputed of." Velu Pillai J. followed the decision of the Calcutta High Court reported in Aluminium Corporation of India Ltd. v. C. Balakrishnan [1959] 37 ITR 267 and also the decision in Vetcha Sreeramamurthy v. ITO [1956] 30 ITR 252 (AP). D. N. Sinha J. observed in the decision in Aluminium Corporation's case [1959] 37 ITR 267 (Cal), at pp. 269 and 270 as follows: "A judicial exercise of discretion involves a consideration of the facts and circumstances of the case in all its aspects. The difficulties involved in the issues raised in the case and the prospects of the appeal I being successful is one such aspect. The position and economic circumstances of the assessee is another. If the officer feels that the stay would put the realisation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer may, in his discretion, and subject to such conditions as he may think fit to impose in the circumstances of the case, treat the assessee as not being in default in respect of the amount in dispute in the appeal, even though the time for payment has expired, as long as such appeal remains undisputed of." It should be stated that apart from such power vested in the officer, it appears to me that the 2nd respondent, AAC, has got inherent Power to pass such orders which will not render the final order, that is likely to be passed in the appeal, ineffective or illusory. Such inherent power is vested in every authority, in whom is vested the power to hear and determine any cause. M. S. Menon C.J., in delivering the judgment of the Full Bench in N. K. Dharmadas v. State Transport Appellate Tribunal of Kerala [1962] KLT 505; AIR 1963 Ker. 73, observed as follows (p. 75 of AIR): " An appeal is a complaint to a superior body of an injustice done or error committed by an inferior one with a view to its correction or reversal. It is a creature of statute, not a constitutional or inherent right. But, as pointed out by Maxwell, where an Act confers a jurisdiction, it impliedly also g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of stay pending the appeal. An unreported decision by a learned single judge of this court in O.P. No. 238 of 1970, in a matter arising under the Indian I.T. Act, is instructive in this regard. In O.P. No. 238 of, 1970, V. P. Gopalan Nambiar J., as he then was, held as follows : " On the principle of the decision in Income-tax Officer v. Mohammed Kunhi [1969] 71 ITR 815, it seems clear to me that power to grant stay of collection of the tax must be inherent and must be an incidental power to the effective exercise of the appellate powers of the Appellate Assistant Commissioner. I can see no difference in principle between the Appellate Tribunal which was found to have an inherent power of stay in Mohammed Kunhi's case, and the power of the Appellate Assistant Commissioner with which I am concerned in this case. Following the principle in Mohammed Kunki's case, I hold that the Appellate Assistant Commissioner has inherent power to grant stay of collection of the tax pending disposal of the appeal." This decision was upheld by a Division Bench in Writ Appeal No. 136 of 1972. In the light of the above decisions, it cannot be contended that the AAC has no inherent power to order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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