JUDGMENT
Nagendra Prasad Singh, J.
1. This is a writ application for quashing an order dated 17th December, 1971, passed by the Income-tax Appellate Tribunal, Patna, on a petition tiled by the petitioner for staying the proceedings in I.T.A. No. 743/178-5B/69-70 pending before the Appellate Assistant Commissioner. By the impugned order the Income-tax Tribunal has rejected the prayer of the petitioner for staying the proceedings referred to above. A copy of the said order is annexure “5” to the writ application.
2. The petitioner had filed an appeal against the assessment order of the Income-tax Officer for the year 1968-69 before the Appellate Assistant Commissioner, Jamshedpur, who by his order dated 8th June, 1971, found that the net receipt shown by the petitioner was Rs. 4,32,477.82 and the gross receipt was Rs. 7,12,379.95 and in the opinion of the Appellate Assistant Commissioner there was no justification for the Income-tax Officer to make estimate on the gross receipt. However, the Appellate Assistant Commissioner, in the concluding portion of the said order, by mistake, mentioned net receipt of Rs. 4,34,955, instead of gross
receipt of Rs. 7,12,379’95. When this fact was brought to the notice of the Appellate Assistant Commissioner he purported to rectify the said mistake in exercise of power under Section 154 of the Income-tax Act and while rectifying the said mistake by the order dated 4th October, 1971, he cancelled the earlier order dated 8th June, 1971, by which the appeal of the petitioner had been allowed. A copy of the order dated 4th October, 1971, is annexure “3” to the writ application. The petitioner being aggrieved by the said order filed an appeal before the Income-tax Appellate Tribunal making a grievance that the Appellate Assistant Commissioner could not, while rectifying the mistake in exercise of the power under Section 154 of the Act, have cancelled the whole order by his order dated 4th October, 1971. The said appeal was admitted by the Income-tax Appellate Tribunal and was pending disposal. Later, when the Appellate Assistant Commissioner in pursuance of his order dated 4th October, 1971, purported to proceed with the matter, an application was filed before the Income-tax Appellate Tribunal to stay further proceedings before the Appellate Assistant Commissioner. By the impugned order (annexure “5”) the Income-tax Appellate Tribunal, as already stated above, rejected the said prayer of the petitioner. The said Tribunal while rejecting the prayer has observed that under the Income-tax Act there was no provision conferring any such power on the Tribunal to stay the proceeding before the Appellate Assistant Commissioner or before the Income-tax Officer and hence the said application was being rejected.
3. Mr. B. P. Rajgarhia, learned counsel for the petitioner, has urged that the ground for rejecting the application for stay by the Tribunal was erroneous and as such there is an error apparent on the face of the said order inasmuch as the Tribunal was not right in rejecting the application for stay on the ground that it did not possess any such power. Learned counsel has urged that a court of appeal has incidental power by way of granting an interim relief during the pendency of an appeal although such power might not have been conferred under some statute and in this connection he has drawn our attention to a judgment of the Supreme Court in Income-tax Officer v. Mohammed Kunhi. Their Lordships, while considering the power of the Income-tax Appellate Tribunal to grant stay during the pendency of the appeal, observed that the power of such Tribunal in dealing with appeals was of widest amplitude and in some cases the power was similar and identical to the power of an appellate court under the Code of Civil Procedure, Their Lordships observed as follows :
“Section 255(5) of the Act does empower the Appellate Tribunal to regulate its own procedure, but it is very doubtful if the power of stay can be spelt out from that provision. In our opinion, the Appellate
Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction. This is particularly so when Section 220(6) deals expressly with a situation when an appeal is pending before the Appellate Assistant Commissioner but the Act is silent in that behalf when an appeal is pending before the Appellate Tribunal. It could well be said that when Section 254 confers appellate jursdiction, it impliedly grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution and that the statutory power carries with it the duty in proper cases to make such orders for staying proceeding as will prevent the appeal if successful from being rendered nugatory.”
4. Learned counsel appearing for the department has, however, urged that the Tribunal was right in rejecting the petition of the petitioner saying that there was no specific provision under the Act under which the Tribunal is empowered to grant stay during the pendency of the appeal before it and, as such, there was no error apparent on the face of the said order calling for an interference by the extraordinary power of the court under Articles 226 and 227 of the Constitution of India. Learned counsel has drawn our attention to the merits of the appeal which is pending disposal before the Tribunal.
5. In this writ application only a limited question has been raised as to
whether the Tribunal should have heard the application for stay on merits
or not and as such we are not called upon to make any observation on the
merits of the appeal which is yet to be decided by the Tribunal. In my
opinion the view taken by the Tribunal is erroneous that it has no such
power. If the Tribunal had rejected the prayer for stay on merits the
matter would have been different but from the order it appears that the
prayer for stay made by the petitioner has been rejected simply on the
ground that the Tribunal did not possess any such power under the statute. In that view of the matter, the said order has to be quashed by a writ of
certiorari.
6. In the result this application is allowed, the order dated 17th December, 1971 (annexure “5” to the writ application), is quashed and the Tribunal is directed to hear the application for stay of further proceedings before the Appellate Assistant Commissioner on merits and to pass appropriate orders in accordance with law. In the circumstances of the case, however, there will be no order for costs.
Sarwar Ali, J.
7. I agree.
