JUDGMENT M.C. Agarwal, J.
1. By this writ petition under Article 226 of the Constitution of India, the petitioner seeks a mandamus directing respondent No. 1, the Commissioner of Income-tax (Appeals), Muzaffarnagar, to dispose of an application for staying the recovery of the income-tax dues for the assessment year 1991-92 and also a direction staying the recovery proceedings till the disposal of the said stay application by respondent No. 1.
2. Since the petition involves a purely legal question about the power of the Commissioner of Income-tax (Appeals) to stay recovery of dues during the pendency of an appeal before him, I have heard learned counsel for the parties and the petition is being disposed of finally without calling for a counter-affidavit.
3. The petitioner's income-tax assessment for the assessment year 1991-92 has been made by the Assessing Officer, vide order dated March 31, 1994, raising a demand of Rs. 17,46,002. The petitioner filed an appeal before the Commissioner of Income-tax (Appeals), Muzaffarnagar, on April 25, 1994. On August 12, 1994, the petitioner moved an application before the Commissioner of Income-tax (Appeals) praying that the recovery of the dues be stayed pending the appeal. A copy of the stay application is annexure "3" to the writ petition. The petitioner's grievance is that the Commissioner of Income-tax (Appeals) has not yet disposed of the stay application and he be directed to do so by issuing a writ of mandamus and, in the meantime, this court may stay the recovery proceedings.
4. Reliance is placed on a judgment of this court in Prem Prakash Tripathi v. CIT [1994] 208 ITR 461 in which this court held that the power to grant stay of the recovery of the demand disputed in appeal is incidental or ancillary to the appellate jurisdiction and, therefore, the Commissioner of Income-tax (Appeals) has the jurisdiction to stay the dues.
5. Learned counsel for the respondents referred to Sub-section (6) of Section 220 of the Income-tax Act, 1961, which gives power to the Assessing Officer to treat the assessee as not in default when an assessee has presented an appeal under Section 246 of the Act. It is contended that the assessee must move an application before the Assessing Officer under Section 220(6) of the Act and it is only after the Assessing Officer declines the request that the jurisdiction of the first appellate authority may be invoked. He pointed out that, in the present case, by an order dated September 22, 1994, a copy of which is annexure '4' to the writ petition, the Assessing Officer declined to stay payment of the demand. He, therefore, contended that the petitioner's application dated August 12, 1994, was not maintainable before the Commissioner of Income-tax (Appeals) because, by that time, the petitioner's application under Section 220(6) of the Act had not been decided. This contention, in my view, is not correct. The power of the appellate authority to stay the recovery of the demand of dues which are the subject-matter of appeal pending before him, is independent of the provisions of Sub-section (6) of Section 220 of the Act and it is not necessary that before invoking the power of the first appellate authority, an assessee should approach the Assessing Officer under the aforesaid provision or that the Assessing Officer must reject the assessee's prayer for stay of the demand.
6. Since the assessee has moved an application for stay before the Commissioner of Income-tax (Appeals), Muzaffarnagar, it is his duty to dispose of the same expeditiously. This writ petition is, accordingly, allowed and the Commissioner of Income-tax (Appeals), Muzaffarnagar, is directed to dispose of the petitioner's application for slay within a period of one month from the date a certified copy of this order is filed by the petitioner before him. The petitioner is directed to do so within ten days from today. Till the disposal of the stay application by the Commissioner of Income-tax (Appeals), the recovery of income-tax dues for the assessment year 1991-92 shall remain stayed.
7. A copy of this order may be furnished to learned counsel on payment of usual charges within 48 hours.