TaxTMI 
TaxTMI 
1971 (2) TMI 84
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....ght of appeal. It has got two provisos. The first proviso enacts that no appeal against an assessment shall be entertained unless it is accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due or of such instalment thereof as may have become payable. The second proviso enacts that the appellate authority shall not exercise any powers or perform any other function except those conferred on or entrusted to him as such authority. Section 9(3) specifies the powers of the appellate authority. Section 10(1) creates the revising authority. Section 10(3)(i) enacts that the revising authority may for the purpose of satisfying itself as to the legality or propriety of any order made by any appellate or assessing authority call for and examine the record of such order and may pass such order as it may think fit. Section 10(3)(i) has three provisos. The first proviso enacts that no application in revision shall be entertained in any case where an appeal lay against the order but was not preferred. The second proviso is to this effect:"..... an application for stay of realisation of any amount of tax, fee or penalty, shall not be entertained by t....
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....l against the assessment order shall be entertained unless the appellant has furnished satisfactory proof of the payment of not less than the amount of tax or fee on the turnover of sales or purchases admitted by the appellant in the return filed by him or at a later stage in the proceedings before the assessing authority, whichever is greater, or the amount of tax or fee on the turnover of sales or purchases admitted at any stage in the proceedings before the assessing authority, or 20 per cent. of the amount of tax or fee assessed, whichever is greater, if no return has been filed. This amendment is similar to the one introduced by the Ordinance in section 9(1). The amending Act has added sub-section (3-A) to section 9. The new sub-section (3-A) provides that the appellate authority shall not have the power of staying realisation of any amount of tax, fee or penalty payable by the appellant under an order under appeal. The amending Act has also amended sub-section (4) of section 10. The amended sub-section (4) empowers the revising authority to stay realisation of any amount of tax, fee or penalty payable by the assessee under any order against which an appeal or revision is p....
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.... under the unamended section 10(3)(i). In regard to the disputed amount of tax, the revising authority enjoyed unconditional power under the unamended section 10(3). There was a condition in regard to the continuance of the stay already granted. That condition was that security should be furnished by the applicant in revision within thirty days from the date of the order made by the revising authority. But there was no condition on the power to stay recovery of tax, fee or penalty itself. The amended sub-section (4) of section 10 curtailed the power of the revising authority to grant stay. He cannot now grant stay unless it is shown to him that at least one-third of the disputed amount of tax, fee or penalty admitted by the appellant has already been paid in addition to the amount of tax or fee. The result of the amendment, therefore, is that after the amendment the revising authority cannot stay recovery of the entire disputed amount. He can stay recovery of only two-thirds of the disputed amount; one-third of it has got to be deposited by the applicant in revision before he can ask for stay of the remaining undisputed amount. Before this amendment the revising authority, howev....
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....The first decision was under the Income-tax Act. The question was whether the Income-tax Appellate Tribunal, which is empowered to entertain an appeal from an order of assessment, has got the power to grant stay of recovery of tax during the pendency of the appeal before it. The argument on behalf of the Income-tax department was that as the Act does not confer any express power to grant stay, the Tribunal has got no such power. The Supreme Court did not accept the argument. It was held that the Tribunal has got ample power to stay recovery of tax during the pendency of the appeal before it. It was said that the power to grant stay is incidental or ancillary to the appellate power. But nowhere in this decision it has been held that a right to stay is an integral part of an assessee's right of appeal. The Supreme Court observed: "If the Income-tax Officer and the Appellate Assistant Commissioner have made assessments or imposed penalties raising very large demands and if the Appellate Tribunal is helpless in the matter of stay of recovery, the entire purpose of the appeal can be defeated if ultimately the orders of the departmental authorities are set aside." It is difficult t....