D. Manmohan, Judicial Member - (1.) BY these Petitions, the assessees seek stay of collection of outstanding demands, pending disposal of the appeals, it may be noticed that vide order dated 20-12-02, a conditional stay was granted by the ITAT. Though the assessees fulfilled those conditions, the appeals could not be taken up within six months and thus the stay got expired by virtue of provisions of Section 254(2A) of Income-tax Act. The assessees again applied for stay wherein it was mentioned that the appeals in question were already posted for hearing but, for no fault on the part of the assessees, the appeals got adjourned from time to time.
(2.) The learned DR, on the other hand, sought to argue the case on merits and mentioned that there is no prime facie case for grant of stay. However, considering the circumstances of the case and also in view of the fact that the stay has already been granted to the assessees and they had complied with the terms of stay earlier granted, the plea of the learned DR was not accepted. Accordingly, vide order dated 30th May, 2003, the Bench granted stay of recovery of amounts outstanding against the petitioners. This stay expired on 30-11-03. Since the assessees' financial position continued to be precarious, another set of stay petitions were filed requesting for stay of collection of outstanding demand till the disposal of the appeals and also submitted that the appeals were in fact posted for hearing on 11-12-2003 and they are ready to proceed with the matter. On the other hand, the learned DR filed written submissions which are identical to the one filed in SP Nos. 100 to 103/Hyd/2003 which were already considered by the Bench in their order dated 30th May, 2003.
(3.) WE have carefully considered the rival submissions. Section 254 of Income-tax Act, 1961 confers on the Appellate Tribunal, powers of the widest amplitude in dealing with the appeals before it; by implication the Hon'ble Apex Court felt that the statutory power under Section 254 carries with it duty in proper cases to make such orders for staying recovery proceedings pending an appeal before the Tribunal (ITO v. M.K. Mohammad Kunhi (71 ITR 815) (SC). Such implied power is an adjunct of, and flows from, the substantive power to entertain or hear the appeal conferred upon the Tribunal. So long as this power is not expressly taken away by the Legislature; the power of the Tribunal to grant stay cannot be questioned. The case of the learned DR is that second proviso in Sub-section (2A) of Section 254, incorporated by Finance Act, 2001, restricts the power of the Tribunal of grant stay beyond the period of six months. The relevant provisos Read as under:- "Provided that where an order of stay is made in any proceedings relating to an appeal filed under Sub-section (1) of Section 253, the Appellate Tribunal shall dispose of the appeal within a period of one hundred and eighty days from the date of such order; Provided further that if such appeal is not so disposed of within the Period specified in the proviso, the stay order shall stand vacated after the expiry of the said period". It will be noticed that the second proviso only speaks of automatic vacation of stay earlier granted by the Tribunal but it no where restricts the power of the Tribunal to grant fresh stay on a fresh application made by the petitioners/assessees if the circumstances so demand. In other words, the inherent power to the Tribunal to grant stay in deserving cases is not taken away by virtue of insertion of the aforementioned two provisos below Sub-section (2A) of Section 254 of the Act. As could be seen form the memo explaining the provisions (248 ITR 201 (statutes), the only reason given for introduction of the proviso is that, in many cases, stay granted by the Tribunal on recovery of demand till the disposal of the appeal makes the demand irrecoverable for several months or even years and therefore it was thought fit to introduce the above mentioned provisos whereby stay earlier granted would automatically stand vacated after the expiry of six months period form the date of the order. In our considered opinion, the object is only to have a check on the unscrupulous assessees who obtain a stay order from the Tribunal but, on some pretext or other, would not co-operate with the Bench in disposing of the appeals so that they can avail the benefit of stay for a longer period. By this proviso after six months from the date of stay order the matter once again be reviewed and the facts and the circumstances would be in the knowledge of the Bench while deciding the fresh Stay Petitions. Thus, in our considered opinion, there is no bar, under the Act, to grant fresh stay.;