- (1.) ON the oral prayer learned counsel for the petitioner is permitted to implead Central Board of Direct Taxes as respondent No. 4 in the array of the parties to the writ petition.
(2.) HEARD Sri Shubham Agarwal, learned counsel for the petitioner and Sri Govind Saran, learned Standing Counsel for the respondents. The petitioner submitted that against the assessment he has filed an appeal before the Commissioner of Income Tax (Appeals), Kanpur, i.e., respondent No. 3 along with a stay application in January, 2009 but no order on his stay application has been passed by the Appellate Authority till date and in the meantime the respondent No. 2 is proceeding to recover the amount of penalty, which has been imposed as a result of assessment, which is in appeal pending before the respondent No. 2. He submitted that either the appeal itself ought to have been decided by the Appellate Authority or in any case her stay application ought to have been disposed of and till then no recovery should have been made from her. Sri Govind Saran, learned Standing Counsel for the respondents, however, submitted that on mere asking the appellate authority cannot grant ad interim order unless it is found that there is a prima facie case and balance of convenience and the public interest is also considered. He placed reliance on the Apex Court decision in Assistant Collector of Central Excise, Chandan Nagar v. Dunlop India Limited and others, 1985 (154) ITR 172. He further submits that the Court generally refrain from granting interim stay as a matter of public convenience in the matter of indirect taxes. Relying on the Apex Court decision in Empire Industries Ltd. and another v. Union of India and others, 1986 (162) ITR 846, he submitted that there is no provision empowering the Commissioner of Income Tax (Appeals) (hereinafter referred to as CIT(A)) to grant any interim order in the appeal.
(3.) SRI Shubham Agarwal, learned counsel for the petitioner replied that there is power of stay possessed by the CIT(A) and placed reliance on the Apex Court's decision in I.T.O. v. M.K. Mohammed Kunhi, (1969) 71 ITR 815 (SC) and a Division Bench of this Court in Prem Prakash Tripathi v. Commissioner of Income Tax and others, 1994 (208) ITR 461. He also submits that it is not proper for the appellate authority to sit tight over the stay application but he is obliged to pass order in accordance with law within a reasonable time failing which a mandamus can be issued by this Court compelling him to discharge his duties expeditiously. In support of the contention he placed reliance on Hon'ble Single Judge's judgments of this Court in M/s Shivangi Steels Pvt. Ltd., Agra v. Assistant Commissioner, Income Tax and another, 2003 UPTC 814 and Tin Manufacturing Company of India v. C.I.T. and others, 1995(212) ITR 451. There is no quarrel with the proposition advanced by the learned counsel for the revenue that on mere asking an interim order should not be passed. We are also aware that in the matter involving public revenue the Court should be slow in passing interim order unless it is found that such an interim order is in the interest of justice. However, the two propositions have no application in the case in hand for the simple reason that the CIT(A) in this case has not passed any order whatsoever though the appeal was preferred by the petitioner as long back as on 19.1.2009 and since more than two and half months have passed but the CIT(A) has not passed any order whatsoever. The grievance of the petitioner is not that the CIT(A) has not passed order in his favour but what he contended is that the CIT(A) has completely failed in discharge of its statutory obligation of passing some order on the stay application filed by the petitioner. It is the total inaction on the part of the CIT(A) which has made the petitioner to invoke extraordinary jurisdiction of this Court by filing this writ petition. In our view, this inaction on the part of the CIT(A) cannot be appreciated but has to be condemned in the strongest words. We are well aware, and have no reason to doubt that while considering stay application the authority concerned would exercise his power judiciously and after applying its mind to various aspects of the matter should pass order but that would not confer jurisdiction upon the authority concerned to sit tight and choose not to pass any order whatsoever on the stay application. So far as the power of stay of CIT(A) is concerned, in our view, the law laid down by the Apex Court in the case of I.T.O. v. M.K. Mohammed Kunhi(supra) and a Division Bench of this Court in Prem Prakash Tripathi v. Commissioner of Income Tax and others (supra), clinches the issue in favour of the proposition advanced by the petitioner. We have no manner of doubt that the stay application is maintainable and CIT(A) do possess power to pass an interim order which he has to consider judiciously in accordance with law. We, therefore, dispose of the writ petition with the direction to the Appellate Authority concerned to hear the stay application and dispose of the same within a period of 15 days from this date. However, it is expected that no coercive action will be taken against the petitioner meanwhile.;