TMI Blog2000 (7) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... ant claimed depreciation for the plant. Although the rental income of the plant was assessed in the hands of the appellant, the claim for depreciation was, however, disallowed by the Assessing Officer. The appellant filed an appeal and ultimately the Income-tax Appellate Tribunal (in short "the Tribunal") dismissed the appeal of the appellant. Feeling aggrieved by the order of the Tribunal, the instant second appeal has been filed by the appellant and by an order dated June 19, 2000, of a Division Bench of this court, this second appeal has been admitted and an order of stay of realisation of the demand was granted for a period of four weeks from the date of passing that order with liberty to the parties to apply for extension, variation, and modification of the interim order in the presence of the other side, Before proceeding further, we may keep it on record that at the time of taking up for hearing of the instant application, Mr. Bajoria, appearing for the appellant, has submitted that as the dues in terms of the order of assessment has already been realised by the authorities, the application for stay shall not be proceeded with any further. That being the stand taken by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals filed before the appropriate authority if the assessee is aggrieved by an order of the Assessing Officer named therein. Section 249 deals with the form of appeal and limitation. Section 260 of the Act confers power on the High Court or the Supreme Court to decide question of law raised on the case stated in pursuance of the order passed under sections 256(1) and 256(2) of the Act. Sub-section (1) of section 260 of the Act says that the High Court or the Supreme Court upon hearing any such case shall decide the questions of law raised therein and shall deliver its judgment thereon containing the grounds on which such decision is founded and a copy of the judgment shall be sent under the seal of the court and the signature of the Registrar, to the Appellate Tribunal which shall pass such orders as are necessary to dispose of the case conformably to such judgment. Sub-section (1A) of section 260 has been introduced by an amendment in view of coming into force of section 260A of the Act. In sub-section (1A) of section 260 of the Act, it has been made clear that where the High Court delivers judgment in an appeal filed before it under section 260A, effect shall be given to the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e scope of entertaining a second appeal under section 260A of the Act are completely different. So far as section 260A is concerned, a regular appeal shall lie to the High Court against every order passed in appeal by the Appellate Tribunal, if the High Court is satisfied that the case involves a substantial question of law as noted herein earlier. From sub-section (6) of section 260A it is pellucid that sub-section (6) of section 260A of the Act has duly conferred power on the High Court to determine any issue which has not been determined by the Appellate Tribunal or has been wrongly deter mined by the Appellate Tribunal by reason of a decision on such question of law as is referred to sub-section (1) of section 260A. From a careful comparison of the language used in section 260A of the Act and the language used in section 100 of the Code of Civil Procedure, it cannot be disputed that the language used in section 260A of the Act is similar to the language used in section 100 of the Code of Civil Procedure. Similarly, sub-section (6) of section 260A of the Act is somewhat similar to section 103 of the Code of Civil Procedure. Keeping these provisions in mind, let us now. therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only be decided by this court and furthermore the appeal shall be decided only on the questions formulated by it, there was no question of granting an order of injunction and/or stay of the penalty proceeding in the appeal pending under section 260A of the Act as the High Court would only decide the questions formulated by it for decision and no other question. Therefore, Mr. Mullick con tended that the provisions of Order 41, rule 5 of the Code of Civil Procedure in spite of applicability of such a provision in view of sub-section (7) of section 260A of the Act cannot be applied to the facts and circumstances of this case. We are unable to accept this submission of Mr. Mullick. From the facts stated herein earlier, it is clear that the penalty proceeding in fact, has been initiated against the assessee from the assessment order itself. The Assessing Officer, while assessing the income-tax dues of the assessee, had passed direction for initiating a penalty proceeding against the assessee. Therefore, it can be easily said that the penalty proceeding has been initiated pursuant to the order of assessment passed by the Assessing Officer. Accordingly, in our view, it cannot be said tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, while exercising the power under section 260A of the Act is a "court" within the meaning of "court" under section 151 of the Code of Civil Procedure. The law is well settled that where the provisions of Order 41, rule 5 of the Code of Civil Procedure cannot be applied in a given case, the court can exercise the inherent power conferred under section 151 of the Code of Civil Procedure as there is no specific provisions in the Code to grant such an order of stay or injunction. Therefore, even assuming that Order 41, rule 5 of the Code of Civil Procedure cannot be applied in the present case, in our view, the High Court being a "court" is entitled to exercise the inherent power under section 151 of the Code of Civil Procedure to grant stay or to pass an order of injunction restraining the respondents from proceeding with the penalty proceeding during the pendency of the appeal. In the case of Mrs. Kavita Trehan v. Balsara Hygiene Products Ltd., AIR 1995 SC 441, the Supreme Court while dealing with restitution under section 144 of the Code of Civil Procedure clearly laid down the principles as follows : "The jurisdiction to make restitution is inherent in every court and will be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en any period during which the proceeding for the levy of penalty is stayed by an order or injunction of any court. From the above, an analogy can be easily drawn by us that in an appropriate situation, the High Court is not powerless to grant stay or pass an order of injunction for the purpose of staying the penalty proceeding during the pendency of the appeal. For the reasons aforesaid, we dispose of the instant application by the following directions : (a) All further penalty proceedings initiated pursuant to the notice dated March 20, 2000, shall remain stayed till the disposal of this appeal. (b) Let the hearing of the appeal be expedited. Since the Revenue has already entered appearance, service of notice of appeal be dispensed with. Let the requisite number of paper books be filed. If no such direction for filing the same has not yet been made, the same may be filed within six weeks from this date in default, put up "for orders". The appeal shall be listed within a period of two months from this date. The application for stay is thus disposed of in the manner indicated above. As we have already disposed of the original application for stay on the stand taken by learn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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