TMI Blog2009 (1) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... held that: "Interim stay already granted on 4-12-1990 is made absolute on condition that the petitioner pays 25 per cent of the penalty and interest in six equal monthly instalments commencing from April, 1993. Each instalment to be paid on or before 10th of the month. W.M.Ps are ordered as above." Subsequently, the petitioner filed another WMP No. 10870/93 for further directions and clarifications of the earlier order of the High Court and the High Court by its order dated 19-4-1993 held as follows: "Having given my anxious consideration, I direct the entire payment of the 25 per cent of the penalty and interest to be paid in 12 equal monthly instalments, the first of the payment to be made on or before the 10-5-1993 and thereafter, on or before the 10th of every month, the monthly instalments shall be paid. In default of anyone instalment, the interim stay shall stand vacated." However, the petitioner had complied with the above directions only in respect of two instalments but had not complied with the directions in respect of other instalments even though it had ultimately remitted a sum of Rs. 26,20,929, which was in excess of the stipulated amount of Rs. 25 lakhs as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1996. Interim stay is granted till disposal of appeal. Any request for adjournment of the hearing of the case on the part of the assessee or on the part of the revenue is liable to be rejected resulting in the case being decided ex parte on merits. The petition is thus allowed. Per S. Ananda Reddy, Judicial Member.-I have gone through the order of my learned Brother. I am unable to concur with my learned Brother. Therefore, I am constrained to pass the following order. 2. The assessee is an individual. For the assessment year 1985-86 the departmental authorities levied penalty under section 271(1)(c) in a sum of Rs. 100 lakhs. This was confirmed by the CIT(Appeals) and the assessee is in further appeal to this Tribunal. Simultaneously the assessee approached the Commissioner of Income-tax under section 273A of the Income-tax Act seeking waiver or reduction of the penalty under section 271 (1)(c). The CIT passed orders in May 1990 refusing to grant either waiver or reduction of the penalty levied. Thereupon the assessee approached the Hon'ble High Court of Madras by way of Writ Petition WP No. 18501/90 for quashing the order passed by the CIT and for a further direction to rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf out. Therefore, prayed for grant of stay. 3. The learned counsel for the assessee contended that the present stay application is an independent application and as the penalty proceedings are pending before this Tribunal in appeal, this Tribunal can grant stay of the collection of the balance demand as the assessee has paid more than 25 per cent of the penalty now. The Departmental Representative, on the other hand, opposed the grant of stay stating, that the present proceedings would not survive in view of the pendency of the Writ proceedings. It was also stated that the assessee had approached the Hon'ble High Court of Madras for grant of stay. At the assessee's instance, the original conditional order passed was even modified. Even then that order was not complied with and it had resulted in vacating the interim order granted by the High Court. If any further stay is to be obtained, it should be only from the High Court and this Tribunal has no jurisdiction to pass any stay order. 4. This Tribunal has considered a similar issue in the main appeal itself in the case of V. Anandmull Jain (Indl.) v. Asstt. Commissioner [1995] 54 ITD 469, where this Tribunal held that once th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -tax Act, declining to reduce or waive the levy of penalty has the effect of ousting the jurisdiction of the Tribunal over the subject-matter of appeal against levy of penalty for concealment of income? (2) Where the interim stay granted in the Writ Miscellaneous Petition by the High Court stood vacated as a result of the default committed by the assessee in the payment of instalments as directed by the High Court, the assessee who has filed an appeal before the Tribunal against levy of penalty is within his rights to approach the Tribunal for stay of collection of the outstanding amount and/or to hear the appeal out of turn and whether the Tribunal is within its powers to entertain such an application? (3) Whether, in the facts and circumstances of the case, the order proposed by one of the Members granting interim stay and directing the hearing of the case out of turn is just and proper in exercising the powers incidental and ancillary to the appellate jurisdiction?" Per S. Ananda Reddy, Judicial Member.-I have gone through the issues framed by the Senior Member for reference to the Third Member. As according to me, the issues as framed does not correctly reflect the point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instalments commencing from April 1993. Each instalment to be paid on or before 10th of the month. W.M.Ps are ordered as above. 4. Subsequently, the petitioner filed another W.M.P. No. 10870/93 for certain directions and clarification of the earlier order. The High Court, by its order dated 19-4-1993, ordered as under:- 'Having given my anxious consideration, I direct the entire payment of the 25 per cent of the penalty and interest to be paid in 12 equal monthly instalments, the first of the payment to be made on or before the 10-5-1993 and thereafter, on or before the 10th of every month, the monthly instalments shall be paid. In default of anyone instalment, the interim stay shall stand vacated'." It is reported that the matter is still pending before the Hon'ble High Court. The Members of the Tribunal after hearing the stay application did not agree on the order to be passed. The learned Accountant Member after taking note of the above referred direction of the Hon'ble High Court proposed the following order granting stay vide order dated 15-12-1995:- "2. The learned Departmental Representative vehemently contended that since the assessee had gone on a writ petition to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stay shall stand vacated'. The assessee did not comply with that order also. Later he moved the Tribunal and filed stay application No. 50/95. The learned Judicial Member further noted that before the Tribunal it was represented that the assessee has again filed another application for modification of the order of the Hon'ble High Court, which is pending. In view of the aforesaid representation the Tribunal rejected the stay application on 5-6-1995. Now a plea has been taken that the assessee has paid more than 25 per cent of penalty and no stay application is pending before the Hon'ble High Court. The learned Judicial Member further noted that the Tribunal has considered a similar view in the main appeal in the case of V. Anandmull Jain (Indl.), wherein the Tribunal held that once the assessee approached the Commissioner of Income-tax under section 273A and an order was passed, the penalty order passed by the Assessing Officer would not survive and, therefore, the appellate proceedings before the Tribunal would become infructuous. The above view, according to the learned Judicial Member, was further supported by the decision of the Hon'ble Calcutta High Court in the case of Smt. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions under section 255(4) of the Act:- (1) Whether on the facts and in the circumstances of the case, the assessee deserves for the exercise of the discretionary powers of the Tribunal inherent to the appellate authority for granting stay of the recovery of the penalty levied, especially when the stay granted by the Hon'ble High Court for recovery of the same was vacated for the default of the assessee? (2) Whether, the action of the Tribunal in entertaining the stay petition does not amount to, this Tribunal either sitting over the order of the High Court, or stepping into the shoes of the High Court to amend its order; hence in excess of its jurisdiction? With the above difference the matter was referred to the President of the Tribunal under section 255(4) of the Income-tax Act. 6. It was fixed for hearing on several times, but could not be heard as the applicant/appellant expired about 6/7 years back and his legal heirs are not traceable and have not come on record. Notice of hearing from the Tribunal was affixed at the last known place of residence of the deceased by the Income- tax Officer. As the file is pending to resolve the matter under section 255(4) for the las ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that the Tribunal should let the matter rest as per order of the Hon'ble High Court. Therefore, there was no justification on the part of the learned Accountant Member to pass a fresh order of stay as has been done by him in his proposed order. 9. Even otherwise on the facts and circumstances of the case, the application of the assessee has become infructuous. In this case, 17/18 years have passed without any grant of stay. This clearly shows that nobody is interested on behalf of the assessee in the stay of recovery of demand. Otherwise all possible steps would have been taken by the legal representatives. It is well settled that stay of demand is a discretionary relief and is to be granted to persons seeking the same. Therefore, in my opinion this is not a fit case in which the discretionary power should be exercised. Therefore, in the peculiar circumstances of the case, I agree with the learned Judicial Member that the stay application filed by the assessee should be dismissed. 10. The matter should now be placed before the regular Bench for passing an appropriate order in accordance with law. 11. Before closing, I would like to state that it would be in the interests ..... X X X X Extracts X X X X X X X X Extracts X X X X
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