TMI Blog2018 (12) TMI 1143X X X X Extracts X X X X X X X X Extracts X X X X ..... present appeal as pending whichever is earlier. - Registry is directed to fix the hearing of appeal on 15.01.2019, in view of the Hon'ble President’s directive to disposal of stay granted matters expeditiously. - SP No.67/Ind/2018 And Arising out of ITA No.493/Ind/2018 - - - Dated:- 19-12-2018 - SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER For The Appellant : Shri Sumit Nema Shri Gagan Tiwari, A. Rs For The Respondent : Shri R.P. Mourya, D.R. ORDER PER KUL BHARAT, J.M: By present stay application, the assessee is seeking stay of proceedings pertaining to the assessment year 2013-14 being undertaken by the A.O. pursuant to the order dated 28.3.2018 passed u/s 263 of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls available on record and gone through the orders of the authorities below. There is no dispute with regard to the fact that question of validity of rejection of application for registration u/s 12AA of the Act is pending before this Tribunal in ITA No.493/Ind/2018. It is also not disputed that the assessments have been framed in pursuance to rejection of application u/s 12AA of the Act. Ld. Counsel for the assessee has relied on the judgement of Hon'ble A.P. High Court in the case of ITO Vs. Khalid Mehdi Khan (supra) wherein the Hon'ble High Court held as under: 1. These two writ petitions filed by the Income-tax Officer raise a common question for our consideration and can be disposed of together. It is sufficient if we st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for hearing within two months from the said date. It is against the said order granting stay that these two writ petitions have been filed by the department. 3. It is contended by Sri P. Rama Rao, the learned standing counsel for the department, that even if the Income-tax Appellate Tribunal is presumed to have the power to grant stay of operation of the order appealed against, as held by the Supreme Court in Income-tax Officer v. M.K. Mohammed Kunhi[1969]71 ITR 815 (SC), even then, by virtue of the introduction of Sub-section (2A) in Section 153 of the Act by the Taxation Laws (Amendment) Act, 1970, with effect from April 1, 1971, the said power of the Tribunal become curtailed and must now be read in the light of the said sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all such means as are essentially necessary for the exercise of its substantive power, viz., a proper and effective disposal of the appeal. In other words, it was held that the conferment of the substantive power to entertain and dispose of the appeal carried with it, by necessary implication, all the ancillary and incidental powers which are necessary to make the exercise of the substantive power fully effective. While holding that the Income-tax Appellate Tribunal is not a court , it was held that it exercises all the judicial powers similar to and identical with the powers of an appellate court under the Civil Procedure Code and that, therefore, the power to grant stay is necessarily implied. However, it was observed that the said powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Explanation 1.--In computing the period of limitation for the purposes of this section--......... ( ii) the period during which the assessment proceeding is stayed by an order or injunction of any court......shall be excluded. 7. Now, it would be seen that neither Sub-section (2A) nor any other provision in the Act expressly qualifies or abridges the power of the Tribunal to pass all necessary orders under Section 254(1) of the Act. Does it do so by necessary implication? It is, no doubt, true that Clause (ii) in Explanation 1 may not help the department in seeking to exclude the period during which the stay granted by a Tribunal is in operation, since the Tribunal is, admittedly, not a court, yet we are not convinced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having regard to them and in the light of the principles enunciated by the Supreme Court in Income-tax Officer v. Mohammed Runki [1969] 71 ITR 815 (SC). That the Tribunal has taken into consideration the relevant circumstances in this case is evident from the fact that, having granted a stay, it directed the appeals to be posted for hearing within two months therefrom. We are told, however, that the appeals could not be so heard on account of the filing of these writ petitions which necessitated the remittance of relevant records to this court. 8. We may also point out that granting of stay or any other interlocutory order pending the appeal is within the discretion of the Tribunal, and this court will not ordinarily interfere with t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
