TMI Blog2002 (7) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... or in the rules of Tribunal which suggest that a common application for stay of demand for various years can be filed. It was submitted that under section 253(7), a stay application should be accompanied by a fee of Rs. 500. Rule 35A(1)(b) of the Income-tax (Appellate Tribunal) Rules, 1963 suggests that separate application shall be filed for stay of recovery of demand under different enactments. This does not suggest that a common application for various years can be filed for stay of recovery of demand. The ld. D.R. also referred to the notes on clauses and memorandum explaining the provision of the Finance Bill, 1998 when provision relating to section 253(7) was inserted. As per such notes and memorandum, the intention of Legislature was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tay of demands pertaining to various years under same enactment. We have therefore to infer from the provision relating to filing of appeals before the Appellate Tribunal. An appeal to the Tribunal can be filed under section 253(1) of the Act. However, even though common order is passed by first appellate authority yet separate appeals are required to be filed before the Tribunal and each appeal for various years can be considered as a separate appeal. The provisions of section 253 are silent as to whether a common appeal can be filed in respect of a common issue pertaining to various assessment years. Looking to the overall scheme of the Act under which an assessee is required to file separate returns of income for various years, separate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elephone circuits outside India for its business outside India. The payments for such services have been made outside India from an account maintained outside India. The invoices have been raised by the telecom companies from outside India. All the incidents in the transactions have taken place outside India. For a transaction to be brought under the purview of Income-tax Act in India it is essential that at least one of the following should have happened in India: (a) Income should have accrued or arisen in India; in the sense that income generating activity by provision of service which leads to earning in India should have happened in India. In the given case service has been provided outside India. (b) Income should be received in I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 70 per cent of the total demand. The assessee has all the time being co-operative with the Income-tax Department and has never sought any stay in the past even though huge demands have been raised against it. He therefore prayed that the demand of Rs. 1,01,40,340 be stayed till the appeal pending before this Tribunal is disposed off. 6. The learned DR submitted that though the Tribunal has inherent powers to grant stay yet such powers are required to be exercised judiciously. It was further submitted that for grant of stay what is to be seen is that there should be prima facie case and something more than that so as to justify the stay of demand. This view has been taken as held in the case of Assistant Collector of Central Excise v. Dunl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or disposal of cases. Looking to the totality of the circumstances, we are of the opinion that the balance of convenience lies in favour of the assessee which justifies stay of recovery of demand. We accordingly stay the recovery of demand pertaining to assessment year 1999-2000 arising out of order passed under section 201 and 201(1A) of the Act till the disposal of appeal by the Tribunal. 8. Since substantial demand is involved, we think it fit that the appeals pending before the Tribunal be fixed for hearing on out of turn basis. We therefore direct the registry to fix the case for hearing on 7-10-2002. The assessee shall co-operate in disposing off assessee shall not seek adjournment and shall co the appeals pending before the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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