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TMI Blog2004 (1) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... ect has not been removed even after final reminder." In view of this background, this stay petition was put up before the Bench on 19th Dec., 2003. The counsel for the assessee appeared and notice was issued to learned Departmental Representative. The learned Departmental Representative accepted the notice. Copy of the petition was also given to the learned Departmental Representative for arguments on defects mentioned by the Assistant Registrar and for arguments on merits on 30th Dec., 2003. 4. We have heard the learned counsel for the assessee and the learned Departmental Representative on the point of defects pointed out by the Assistant Registrar as well as on merits. The learned counsel for the assessee filed the written reply also and argued that the stay petition has been submitted in proforma that has been prescribed in r. 35A of the Income-tax (Appellate Tribunal) Rules. It was further submitted that under r. 35A above, it will be seen that the terminology used is "correspondence, if any...." It was submitted accordingly that since the appeal was pending before the Tribunal, therefore, the Tribunal only is competent to decide the point of stay against the outstanding d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Office Manual in Chapter VII, it is provided that "as far as possible, the stay petition may be filed according to the specimen provided in Appendix X(e) of the Office Manual. The specimen of Appendix X(e) is given in the Office Manual in which certain particulars have to be mentioned in the stay petition but no such statutory form is provided for filing of the stay petitions. The Office Manual only provides that "as far as possible" the stay petition is to be filed giving particulars as provided in the specimen in Appendix X(e). Therefore, the guidelines given in Office Manual as is referred to by the Assistant Registrar are not mandatory in nature. Similarly, no statutory form is provided for filing of the stay petition. We further find from para 37(2) of Chapter VII of Office Manual that in addition to the above reference to Appendix X(e), it is provided in the same Chapter that every petition in this regard may be filed which is neatly typed and is in English and shall set forth the following particulars: Then (i) to (ix) particulars are prescribed, which are to be mentioned in the stay petition. We find that the particulars as prescribed in para 37(2) of the Office Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is stay petition, we find that the same particulars are provided in the stay petition as is prescribed in r. 35A(2) of the Income-tax (Appellate Tribunal) Rules. We may refer to our order dt. 2nd June, 2003 passed in stay petitions Nos. 10 and 11/All/2003 in the matter of Saraf Trading Company And Fertiliser Traders. In these stay petitions also the then Assistant Registrar has raised similar defects and after considering the defects pointed out by the then Assistant Registrar, we have passed the following order: "We have perused the comments of authorised representative dt. 30th May, 2003. We have also looked into the stay petitions, which appears to be in accordance with r. 35A(2) of the Income-tax (Appellate Tribunal) Rules, 1963. The comments of authorised representative are accordingly filed. The authorised representative should also examine the stay petitions in the light of r. 35A of the Income-tax (Appellate Tribunal) Rules in future in all cases." 7. We may refer to the observation of the Hon'ble Supreme Court in the matter of CIT vs. Calcutta Discount Co. Ltd. 1973 CTR (SC) 425 : (1973) 91 ITR 8 (SC): "The procedure adopted by the Tribunal appears to us to be somewh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal held that separate application for stay of recovery of demand is required to be filed in each appeal. The point of reference for which the Special Bench was constituted by the Hon'ble President and the crux of the finding of the Special Bench is that the stay petition is to be filed in accordance with r. 35A(2) of the Income-tax (Appellate Tribunal) Rules giving particulars concisely from sub-paras (i) to (ix). We may make it clear that the stay petition should contain the details as is mentioned in r. 35A(2) of the Income-tax (Appellate Tribunal) Rules and the paragraphs may come in any way but the required particulars have to be specifically mentioned in the stay petition. The Office Manual, therefore, would, in no way, override the provisions of law and more particularly in this case r. 35A(2) of the Income-tax (Appellate Tribunal) Rules. The stay petitions are in the nature of urgent petitions and have to be fixed before the Bench at the earliest. 8. Considering the above facts and the observation, we are of the considered view that no prescribed/statutory form of the stay petition is provided either in the Office Manual or under Income-tax (Appellate Tribunal) Rules. Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y defect raised in this case was for deficiency of stamp. He has not raised any defects as have been noted in the stay petition under consideration before us. It is most unfortunate that the Registry is taking contrary stand at their whims and fancies without any reasons. We may further remind that according to the amended provisions contained under the IT Act, 1961, the stay order may be operative for a period of six months or the disposal of the appeal whichever occurs earlier. However, the Registry is keeping the stay petitions without fixation even for a longer period. Considering the above, we direct the concerned Officer of the Registry to fix all the pending stay petitions/misc. petitions and early hearing petitions before the Bench at the earliest for consideration in accordance with law subject to the directions of the learned Senior Member fixing the date of hearing in all the pending matters. The same direction be complied with in future. 10. The next defect pointed out by the Assistant Registrar is that no correspondence with lower authorities has been filed. It is fact that the appeal of the assessee is pending for adjudication before the Allahabad Bench of Tribunal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee, the requirement of Appendix X(e) can also be considered but the requirement of Appendix X(e) are not mandatory and on that basis the assessee's petition cannot be termed as defective. Therefore, each case has to be considered on its own merits and whatever material is required by the Bench for deciding the stay petitions is gathered from the assessee in each and every case even if such information is not required under r. 35A or Appendix X. Therefore, no defect can be raised on the basis that the stay petition is not in conformity with Appendix X(e) because the Appendix X(e) is for the guidance of the office of the Tribunal and it is not mandatory on the part of the assessee and the requirements of Appendix X(e) are considered at the time of hearing and the care is taken to see that all the particulars are given as mentioned in Appendix X(e), wherever necessary. 12. Considering the above discussion, we hold that the stay petition has been rightly filed in accordance with r. 35A of the Income-tax (Appellate Tribunal) Rules and there are no defects therein. 13. We have heard the learned Representatives of both the parties on merits. The learned counsel for the assessee has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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