JUDGMENT
M.H.S. Ansari, J.
1. ‘The petitioner is the assessee in the instant case for the relevant assessment year 1995-96. A demand of Rs. 10,41,633 was raised upon assessment made under Section 143(3) of the Income-tax Act. Being aggrieved the petitioner preferred an appeal before the Commissioner (Appeals). Meanwhile, the petitioner made an application under Section 220(6) of the Income-tax Act before the assessing authority requesting that the demand be stayed on account of pendency of the appeal against the order of assessment and that the petitioner should not be treated as an assessee in default.
2. By the order dated January 28, 1998, the assessing authority held that in view of the appeal having been preferred by the assessee, the assessee was requested to pay 50 per cent, of the demand and upon such payment the application for stay would be considered. Seven days’ time for payment was granted failing which it was directed that the stay petition shall stand rejected and recovery measures shall be initiated.
3. Being aggrieved against the order passed by the assessing authority, the petitioner has filed the writ petition assailing the said order of the assessing authority on several grounds.
4. Admittedly an appeal has been preferred by the petitioner and the same is pending adjudication. The power to grant stay of collection of tax, as has been held in a decision of the Supreme Court in the case of TTO v. M. K. Mohammed Kunhi [1969] 71 ITR 815 is an inherent and incidental power of the appellate authority for the effective exercise of the appellate powers. The appellate authority, i.e., the Commissioner (Appeals), thus has an inherent power to grant stay of collection of tax in appropriate cases. Merely because power has been conferred upon the assessing authority under Section 220(6) of the Income-tax Act to treat an assessee as not in default, the same will not in any way militate against the power of the appellate authority to grant stay. I am fortified by a judgment of the Kerala High Court in the case of V. JV. Purushothaman v. Agrl ITO and also by the judgment of the Allahabad High Court in the case of Prem Prakash Tripathi v. OT .
5. The appellate authority before whom the appeal is pending has the power to grant stay of the demand impugned in the appeal pending
before him. It is appropriate that the petitioner-assessee should be relegated to availing of the said remedy before invoking the jurisdiction of this court under article 226 of the Constitution of India. I cannot accede to the contention of learned counsel for the petitioner that the petitioner has no other efficacious remedy except invoking the jurisdiction of this court in the light of the judgments of the Allahabad High Court and the Kerala High Court referred to above, which, in turn, are based upon the Supreme Court judgment in M. K. Mohammed Kunhi’s case [1969] 71ITR 815.
6. However, in so far as the impugned order of the assessing authority is concerned, suffice it to note here that the order is one passed without application of mind and not in conformity with law. A bare reading of the order would show that the assessee has been asked to pay the amount that is, 50 per cent, of the demand, before his request for stay is considered. In other words, only if the assessee pays 50 per cent, of the demand, the impugned order states, the request of the petitioner would be considered for staying the demand and not before. It is not as though that the stay application has been considered and orders thereon have been passed on the merits of the case. I accordingly set aside the order of the assessing authority dated January 28, 1998.
7. No useful purpose would be served by keeping the writ petition on file as the same can accordingly be disposed of with appropriate directions, as under.
8. If the assessee files an application within one week from this date for stay of collection of tax before the appellate authority before whom the petitioner’s appeal is pending against the order of assessment, the appellate authority shall consider the same and pass appropriate orders thereon in accordance with law after affording the petitioner an opportunity of being heard without in any manner being influenced by any observation contained either in this order or in the order of the assessing authority dated January 28, 1998. The petitioner shall co-operate in the early disposal of the stay application and it is directed that the stay application shall be disposed of within thirty days from the date it is received by the appellate authority.
9. Until the stay petition is disposed of by the appellate authority, as directed above, there shall be stay of recovery of tax pursuant to the demand notice raised against the petitioner for the assessment year 1995-96, which is the subject-matter of appeal before the Commissioner.
10. It is clarified that if the petitioner defaults in filing the application within the period of one week specified above, the order of stay hereby granted’ shall stand vacated.
11. The writ application is accordingly disposed of. There will be no order as to costs.
12. All parties are to act on a signed xeroxed copy of this order on the usual undertaking.