CPT V24P7-Art1 (Content).pmd - Taxmann

ut CIT(A) are not bothered by any such
considerations. They are perceived as independent
functionaries under the Act, having no
orders, instructions or directions under the
Act so as to interfere with their discretion in
the exercise of their appellate functions (section
119(2)(b) of the IT Act). However, even CIT(A)
for reasons which are totally unclear have not
been taking any decisions on applications for
stay of demands in cases where appeals are
pending before them, despite the fact that the
Courts have categorically ruled in a number
of cases holding that CIT(A) can exercise such
powers when the appeals are pending before
them. Some cases where such decisions have
been taken are as follows:
(i) Prem Prakash Tripathi v. CIT [1994] 75
Taxman 107(All.)
(ii) V.N. Purushothaman v. Agrl. ITO [1984]
149 ITR 120 (Ker.)
(iii) Debasish Moulik v. Dy. CIT [1998] 231 ITR
737 (Cal.)
(iv) Keshav Cashew Co. v. Dy. CIT [1994] 210
ITR 1014 (Ker.)
(v) Bongaigaon Refinery & Petrochemicals Ltd.
v. CIT [1994] 239 ITR 871 (Gau.)
(vi) Tin Mfg. Co. of India v. CIT [1995] 78
Taxman 249 (All.)
(vii) Punjab Kashmir Finance (P.) Ltd. v. ITAT
[1999] 104 Taxman 584 (Punj. & Har.).
HOW THE COURTS VIEW SUCH CASES?
6. Not only the Courts in the above mentioned
decisions have held that the CsIT have full
powers to give stay, in some of the decisions,
the Courts have even directed the CBDT to
clarify to the CIT(A) about their powers. Some
such cases are as follows:
6.1 The Allahabad High Court’s view - The
Allahabad HC in Smita Agrawal (Ind.) v. CIT
[2009] 184 Taxman 59, observed as follows:—
“We, therefore, direct the CBDT, New
Delhi to look into this aspect of the matter
and, if necessary, to issue a circular to
all the appellate authorities directing them
to dispose of stay applications expeditiously
and so long the stay application is not
disposed of, the assessing officer must be
slow or reluctant in initiating recovery
process. Let a copy of this order be supplied
to the Chairman, CBDT, New Delhi for
information and necessary action”.
6.2 The Rajasthan High Court’s view - The
Rajasthan High Court in the case of Maheshwari
Agro Industries v. Union of India [2012] 206
Taxman 375/17 taxmann.com 68 has in para
56 of the Order said as follows:
“…this Court, respectfully following the
Division Bench observations of Delhi High
Court in the case of Valvoline Cummins
Ltd. (supra), would again urge the Central
Board of Direct Taxes to issue appropriate
guidelines for grant of stay in the spirit
of Instruction No. 95, dt. 21-8-1969 to all
the subordinate authorities and to clarify
for uniform application all over the country
at department level that first appellate
authority shall have power to entertain
and decide stay application during
pendency of appeal before it upon relevant
consideration of stay against recovery of
disputed demand of tax”.
AN EYE-OPENER FOR IT DEPARTMENT
ON INERTIA OF ITS OFFICERS
7. The following observation of the Allahabad
HC in Smita Agrawal (Ind.)’s case (supra) should
be eye-opener for the IT Department which
encourages increase in load of the Courts because
of the inertia of its officers to deal with such
requests:
“Before parting we may observe herein
that off late, we have experienced a flood
of such writ petitions, where the petitioner
having filed appeal along with the stay
application before the authority concerned
have waited for some time but the appellate
authority has failed to pass any order
August 1 to 15, 2012 u TAXMANN’S CORPORATE PROFESSIONALS TODAY u Vol. 24 u 21
641