TaxTMI 
TaxTMI 
2019 (11) TMI 694
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....m but defying the Hon'ble Bombay High Court judgment in the case of Bhupendra Murji Shah v. Dy. CIT & Ors. 170 DTR (Bom) 423 copy of which was submitted before him. The Ld. Pr. CIT-25 Mumbai failed to follow the binding dictum of the jurisdictional High Court judgment. The order of Pr. CIT passed under S. 220(6) be set aside. 3. On the facts and in the circumstances of the case and in law the Ld. Pr. CIT-25, Mumbai also failed to take cognizance of another dictum of the Hon'ble Bombay High Court reported as Nu-Tech Corporate Services Ltd. v. ITO (2018) 171 DTR (Bom) 201. The order of the Pr. CIT be set aside. 2. When this appeal came up for hearing before us on 12th September 2019, our attention was invited to learned counsel's application arguing for adjournment on the ground that he is "required to attend High Court hearing at Aurangabad bench". On a perusal of this application, and on a quick look at the appeal papers, we considered it appropriate to hear the parties on maintainability of the appeal first. It was also explained to the counsel, appearing before us to seek the adjournment, that we have our serious reservations on whether this appeal is maintain....
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....bench. We have perused the contents of the said application and the judicial precedents therein, heard the learned Departmental Representative and duly considered facts of the case in the light of applicable legal position. The operative portion of the content of application for reference to special bench is as follows: The request for constitution of a Special Bench/Larger Bench to decide the contentions issue arising from the order of ITAT 'G' Bench-Mumbai under S. 255 of the Act. The question arising where Regular Bench Hon'ble ITAT Delhi Bench in the case of Employees Provident Fund Organization v. Addl. CIT (2015) 172 TTJ (Del) 140 decided on 10th April 2015 concluding that the order passed by Ld. CIT(A) rejecting stay petitions being an order under S. 250, appeal is clearly maintainable under Cl. (a) of sub S. (1) of 253 against the impugned order. 2) The Hon'ble ITAT Lucknow Bench in the case of Rajya Krishi Utpadan Mandi Parishad v. ITO (II)(2) Lauknow in reported as (2015) 57 taxmann.com3 (Lucknow -Trib) similar issue arose before the Regular Bench-Luknow Bench. There was difference of opinion between Hon'ble J. M. and Hon'....
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...., is not an appealable order before this Tribunal. Of course, we were keen have the benefit of guidance from the learned counsel so that we could enlighten ourselves with his perspectives on the issue but this opportunity was simply brushed aside. In contrast with this factual position of this case, the situation dealt with in the said judicial precedent was pertaining to an order passed by the learned Commissioner of Income Tax (Appeals) under section 250(6) which is specifically appealable under section 253(1)(a). As regards the Third Member decision in the case of Rajya Krishi Utpadan Mandi Parishad Vs Income Tax Officer [(2015) 153 ITD TM 101 (Lucknow)], referred to by the learned counsel, that also a case in which the question before the Tribunal was, as noted with the learned Third Member, "the main crux of issue relates to, whether in the absence of any appeal, the Tribunal has any jurisdiction to entertain the appeal of the assessee against the order passed by ld. CIT(A) on the application of the assessee for stay of recovery of demand when the appeal was pending before the first appellate authority but no appeal was pending before the Tribunal". That is not the issue in th....
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....d to in sub-section (12) of section 144BA or an order passed under section 154 or section 155 in respect of such order; (f) an order passed by the prescribed authority under sub-clause (iv) or sub-clause (v) or sub-clause (vi) or sub-clause (via) of clause (23C) of section 10. (2) The Principal Commissioner or] Commissioner may, if he objects to any order passed by a Deputy Commissioner (Appeals)before the 1st day of October, 1998or, as the case may be, a Commissioner (Appeals) under section 154 or section 250, direct the Assessing Officer to appeal to the Appellate Tribunal against the order. 7. Obviously, there is no mention about orders passed under section 220(6) in the list of orders which can be appealed against before the Tribunal, and the right to appeal has to be a specific right conferred by the statue; such a right cannot be assumed or inferred. In our humble understanding, therefore, the orders passed under section 220(6) cannot be appealed against before this Tribunal. The present appeal is, therefore, not a maintainable appeal before us. In any event, the orders under section 220(6) can only be passed by the Assessing Officer, and not by a Princip....
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.... after the Assessing Officer declines to exercise his powers of granting stay under section 220(6), and, perhaps for this reason, it is somewhat inappropriately described as an order under section 220(6). Such an order is not an appealable order before this Tribunal; the law does not provide so. Taking all these discussions, as also the scheme of the Act, into account, if we are to draw a flowchart in respect of the remedies available for stay on collection/ recovery of demands impugned in first appeal [i.e. before the CIT(A)], it will be something like this: Note 1: As for approaching the jurisdictional administrative exercise is concerned, it is a purely administrative exercise to exhaust the remedies before the lower authorities but then the order under section 220(6) can directly be challenged before the Hon'ble High Court in writ jurisdiction. Note 2: It is only when the administrative remedies are exhausted, the assessee usually challenge the orders passed by the statutory authorities before the Hon'ble High Court in writ jurisdiction. Note 3: The law does not specifically prescribe an appeal against the order, declining the stay by the AO and his s....