9911796707
TMI Blog1987 (10) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... on a reference being made to the High Court, the finality of that Tribunal's order is disturbed, and, after the question referred to the High Court is answered by the High Court, the Appellate Tribunal takes up the appeal and disposes it conformably with the answer returned by the High Court. According to him, on a reference being made to the High Court, the appeal before the Appellate Tribunal is kept pending. He has further submitted that, during the pendency of appeal, the Appellate Authority has the power and jurisdiction to grant stay of the recovery proceedings. In that connection he has referred to the case of ITO v. M. K. Mohammed Kunhi (1969) 71 ITR 815 wherein the Hon'ble Supreme Court has held that, section 254 of the Act which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a reference before it, does not act as a court of appeal. Its jurisdiction is advisory and no more. The High Court is empowered to decide the question of law referred to it and to return its answer to the Appellate Tribunal. The Appellate Tribunal then takes up the appeal and disposes of it conformable with the answer returned by the High Court. Against this, the learned Departmental Representative placed reliance on section 265 of the Act and has submitted that notwithstanding the pendency of a reference, tax shall be payable by the assessee in accordance with the decision delivered by the Appellate Tribunal, which is the final fact finding authority. According to the submissions made by him, it cannot be said that the appeal remains pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not express provision. The Hon'ble Court further expressed the opinion that it cannot be said that the High Court has inherent power incidental power in the matter of a reference pending before it to grant stay of realisation or to grant injunction. It categorically observed that that must remain within the jurisdiction of the appellate authority and pendency of a reference does not detract from that jurisdiction of the appellate authority. 4. In view of the above pronouncement by the Hon'ble Supreme Court, there can be no doubt that during the pendency of a reference, the appeal remains pending before the Appellate Tribunal and the Tribunal, which is the appellate authority has the power and jurisdiction to grant stay of realisation of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fidavit sworn by Shri R. N. Arora has been filed in support of the application. In his affidavit Shri Arora has stated that the business of the assessee has been paralysed and present financial position and economic circumstances are not such that he can pay the disputed demand. That affidavit has been sworn by Shri Arora to his best knowledge and belief. 6. It is now well settled that the power of stay is not likely to be exercised in a routine way or as a matter of course in view of the special nature of taxation and revenue laws. Only when a strong prima facie case is made out, the Tribunal will consider whether to stay the recovery proceedings. In that connection, reference may be made to the case of M. K. Mohammed Kunhi. A bare statem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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