2009 (4) TMI 327

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....itted that against the assessment she 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 her stay application has been passed by the appellate authority till date and in the meantime 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 respondent No. 3. She 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. 4. Sri Govind Saran, learned standing counsel for the respond....

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....s court in Shivangi Steels P. Ltd. v. CIT (Asst.) [2004] 266 ITR 62 (All); [2003] UPTC 814 and Tin Manufacturing Company of India v. CIT [1995] 212 ITR 451 (All). 6. There is no quarrel with the proposition advanced by the learned counsel for the Revenue that on the 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 Commissioner of Income-tax (Appeals) in this case has not passed any order whatsoever though the appeal was preferred by the petitioner as ....

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....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 the Commissioner of Income-tax (Appeals) does 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. 7. Before parting we may observe herein that of late, we have experienced a flood of such writ petitions, where the petitioners having filed appeals along with ....