Pr. Commissioner Of Income Tax, Aayakar Bhawan, Sector-14, Hisar v. Income Tax Appellate Tribunal, Delhi Bench,New Delhi And Another

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH Civil Writ Petition No.15239 of 2015 Date of Decision: 31[st]October, 2015 Pr. Commissioner of Income Tax, Aayakar Bhawan, Sector-14, Hisar. ...Petitioner Versus Income Tax Appellate Tribunal, Delhi Bench,New Delhi and another. ...Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA HON'BLE MS. JUSTICE REKHA MITTAL Present: Mr. Yogesh Putney, Advocate,for the petitioner. Mr. Ajay Vohra, Senior Advocate withMr. Rohit Jain, Advocate,for the respondents. RAJIVE BHALLA, J. The revenue is before us, praying for issuance of a writ inthe nature of certiorari, quashing, orders dated 23.01.2015(Annexure P-12) and 25.03.2015 (Annexure P-16), passed by theIncome Tax Appellate Tribunal, Delhi Bench, New Delhi, directing thatconsideration of the show cause notice for prosecution shall be keptin abeyance. Counsel for the revenue submits that proceedings forprosecution, under Section 276C(1) are independent ofassessment/penalty proceedings. A perusal of the Act, particularlySection 254 of the Act, reveals that it does confer power, upon theTribunal, to grant of a stay and there is no provision which, whether directly or by inference confers power to file an appeal against anorder directing prosecution much less against a show cause noticeproposing to initiate prosecution. The power conferred by Section254(1) of the Act to “pass such orders thereon as it thinks fit”, iscircumscribed by the expression “any proceedings relating to anappeal” used in the first proviso to Section 254(1). The expressions“any proceedings relating to an appeal” and “pass such ordersthereon as it thinks fit” have to be read as conferring power in thecontext of the appeal pending before the Tribunal. The Tribunal was,therefore, required to exercise power within the limits of the powersconferred by Section 254 of the Act but has arrogated to itself thepower to stay prosecution. Admittedly, matters pending before theTribunal are a quantum appeal, an appeal against penalty, andcorrectness of an order passed under Section 263 of the Act. Themere fact that the prosecution arises as a result of an order passedduring assessment does not confer jurisdiction upon the Tribunal tointerpret the expression used in Section 254(1) or the first proviso tostay prosecution. Counsel for the revenue further submits that awillful attempt to evade tax having been prima-facie established,notice under Section 276 was a necessary but independentconsequence. The pendency of the quantum and other appealscannot be said to be so intrinsically linked to the prosecution as toempower the Tribunal to stay prosecution. Counsel for the revenuealso points out that orders against which appeals may be filed are set out in Section 253 of the Act. A perusal of Section 253 reveals that out in Section 253 of the Act. A perusal of Section 253 reveals that much less against a show cause to initiate prosecution. As analternative argument, counsel for the appellant submits that even if itis presumed that the Tribunal has jurisdiction to grant stay againstprosecution, the impugned orders are even otherwise withoutjurisdiction as prosecution has not been launched. The order passedby the Tribunal has brought consideration whether or not to launchprosecution to an halt and, therefore, must be set aside on merits.Counsel for the appellant further submits that the Tribunal havingdirected the assessee to file its reply, the order directing thatprosecution may be kept in abeyance renders the ordersmeaningless. Counsel for the revenue relies upon the followingjudgments to support his arguments that the Tribunal is notempowered to stay prosecution:- Gulab Chand Sharmav.H.P.Sharma etc., (1974) ILR 1 (Delhi), 190;P.Jayappanv.S.K.Perumal, First Income Tax Officer, Tuticorin, 1984 (149) ITR,692(Mad);P.Jayappanv. S.K.Perumal, First Income Tax Officer,Tuticorin,, 1984 (149) ITR, 696(SC); Ashok Buscuit Works andOrsv. Income Tax Officer, Hyderabad, 1988 (171) ITR 300 (AP):Rinkoo Steels and othersv. K.P.Ganguli, Income Tax Officer andanother, 1989 (179) ITR 482 (Delhi);Sant Parkash and Ors. V.Commissioner of Income tax and Ors., 1991 (188) ITR 732 (P&H):Universal Supply Corporation and Ors.v. State of Rajasthan andanother, 1994(206) ITR 222; Commissioner of Income Tax v.Bhupen Champak Lal Dalal and Anr. Etc., 2001 (248) ITR, 830(SC). appeals are pending before the Tribunal, namely, an appealchallenging the order passed under Section 263, the second againstthe assessment order and the third against an order imposingpenalty. The show cause notice proposing to initiate prosecution, isbased in its entirety upon the order passed under Section 263 of theAct, the assessment order and the order passed in penaltyproceeding. The question, therefore, is not whether prosecutionproceedings are independent of assessments and penalty butwhether the show cause notice proposing to initiate prosecution is sointrinsically linked to the out come of the appeals as would requirethe revenue to keep consideration of the show cause notice inabeyance. Counsel for the assessee also submits that decision inthe pending appeals would have a direct bearing on theconsideration of the show cause notice and in case the appeals areallowed or the impugned orders are modified, the show cause noticewould either be rendered infructuous or the matter would have to bereconsidered. Counsel for the assessee further submits that the words“relating to an appeal”, used in Section 254 of the Act and the words,“pass such orders thereon as it thinks fit” used in the provisoempower the Tribunal to stay consideration of the show cause notice.The consideration of the notice is so intrinsically linked to the outcome of the appeals, as to be inseparable. Counsel for the assesseefurther submits that as there is no limitation for launchingprosecution, it is rather surprising that authorities have decided to appeals filed by the assessee. Counsel for the assessee further submits that the words“relating to an appeal”, used in Section 254 of the Act and the words,“pass such orders thereon as it thinks fit” used in the provisoempower the Tribunal to stay consideration of the show cause notice.The consideration of the notice is so intrinsically linked to the outcome of the appeals, as to be inseparable. Counsel for the assesseefurther submits that as there is no limitation for launchingprosecution, it is rather surprising that authorities have decided to appeals filed by the assessee. Counsel for the assessee also contends that whileconsidering the power of the Tribunal to grant stay, the SupremeCourt of India has held in Income Tax Officer, Cannanorev.M.K.Mohammed Kunhi, 1971, I.T.R., 815, though, prior toconferment of the power of stay, by Section 254 of the Act that,though, the power of stay cannot be spelt out, the Appellate Tribunal,must be held to have the power to grant stay as incidental or ancillaryto its appellate jurisdiction. The Supreme Court has also held thatappellate power, in the absence of any specific provision for grant ofstay inhers the power to do all such acts or employ all such meansas are essentially necessary for the exercise of this power whichcarries with it the duty in proper cases to pass such orders for stayingproceedings as will prevent the appeal from being rendered nugatory.The Supreme Court has also referred to a judgment inBurhanpurTapti Mill Ltd.v. Board of Revenue, Madhya Pradesh, 1955(6)STC, 670, that where the legislature invests an Appellate Tribunalwith powers to prevent injustice, it impliedly empowers the Tribunalto stay the proceedings which may result in causing further mischief.The prosecution of the assessee being intrinsically linked to theoutcome of the appeals and the Tribunal merely having directed thatconsideration of the show cause notice shall be kept in abeyance theorder may be affirmed. Counsel for the assessee also relies upon aDivision Bench judgment of the High Court of Delhi in TheCommissioner of Income Tax (Central-II)v. Income TaxNARESH KUMARAppellate Tribunal and others, to contend that in a similar situation,2015.11.20 15:41I attest to the accuracy andauthenticity of this documentChandigarh the High Court of Delhi has held, while considering stay ofproceedings, consequent to directions by the Commissioner ofIncome Tax, under Section 263 of the Act, that such an order isrelatable to the appellate power of the Tribunal under Section 254(1)of the Act, i.e., the power to prevent multiplicity of proceedings,harassment to the assessee and possibility of proceedings before theAssessing Officer being rendered meaningless if ultimately the orderpassed by the CIT is found to be invalid on grounds of jurisdiction oron merits. Counsel for the assessee also relies uponIncome TaxOfficer, J-Ward, Circle-II, Hyderabadv. Khalid Mehdi Khan(Minor), 1977(110), ITR, 80;Puran Mal Kauntia v. Income TaxOfficer and othres, 1975(80), ITR, 39;Commissioner of IncomeTaxv. Wander Pvt. Ltd., 2013 (358) ITR 408(Bom);AssistantCommissioner of Income Taxv. GE India Industrial Pvt. Ltd.,2013(358), ITR, 410(Guj.); in support of his arguments relating to thepower of the Tribunal to stay collateral proceedings, namely, theshow cause notice issued to the assessee why prosecution be notinitiated. Before we record our opinion, it would be appropriate todelimit the facts. M/s Jindal Steel & Power Ltd., respondent no.2, filed areturn of income for assessment year 2008-09, declaring an incomeof Rs.7,66, 99,04,200/-. A revised return was filed on 29.03.2010,reducing the earlier return of income by Rs.26,24,296/-. The return was selected for scrutiny vide order dated 27.12.2010, passed under Before we record our opinion, it would be appropriate todelimit the facts. M/s Jindal Steel & Power Ltd., respondent no.2, filed areturn of income for assessment year 2008-09, declaring an incomeof Rs.7,66, 99,04,200/-. A revised return was filed on 29.03.2010,reducing the earlier return of income by Rs.26,24,296/-. The return was selected for scrutiny vide order dated 27.12.2010, passed under as 'the Act'). The total income was assessed at Rs.10,33,26,17,030/-.The Commissioner of Income Tax noticing that a deduction ofRs.81.59 crore on account of sales tax subsidy/capital reserve, entrytax subsidy and electricity duty subsidy have been wrongly claimed,variation in the statutory liability regarding provision for gratuity andas a consequence in the claim for deduction under Section 43B ofthe Act and additional depreciation of Rs.5,91,106/- has beenwrongly claimed on computers, initiated proceedings under Section263 of the Act and vide order dated 25.03.2013, partly set aside theassessment order, and restored the assessment to the file of theAssessing Officer. A fresh assessment was made on 19.09.2013, byadding Rs.81.59 crores, claimed on account of sales tax subsidy, Rs.1.40 crores claimed on account of Section 43B of the Act andRs.5,91,106/- on account of additional depreciation for computers. The assessee filed an appeal against the order passed underSection 263 of the Act, before the Tribunal. After re-assessment, theassessee filed an appeal against the fresh assessment before theCommissioner of Income Tax, Rohtak, which was dismissed on10.03.2014. The Assessing Officer had also initiated penaltyproceedings under Section 271(1)(c) of the Act and eventually passedan order dated 28.11.2013, imposing penalty. The assesseechallenged the order imposing penalty before the Commissioner ofIncome Tax(Appeals), Rohtak, which was also dismissed.Theassessee, thereafter, filed two appeals, one being the quantum appeal assessment order and the third against the levy of penalty, were filed,were pending before the Income Tax Appellate Tribunal, when therevenue served a notice dated 26.12.2014, calling upon theassessee to show cause, why prosecution be not initiated, underSection 276C(1). The assessee, did not file a reply but instead filed anapplication in the appeal, challenging the imposition of penalty,before the Income Tax Appellate Tribunal (hereinafter referred to as'the Tribunal') for stay of prosecution. The revenue urged before theTribunal, lack of jurisdiction to stay prosecution, as well as raisedother pleas. The Tribunal, vide order dated 23.01.2015, ordered thatlaunching of prosecution shall remain in abeyance upto the next dateof hearing i.e. 02.02.2015. A relevant extract from the order reads asfollows:- “4. Regarding application for staying theprosecution under Sec. 276C(1) of the Act, wedirect that so far as filing of reply to show-causenotice and rejoinder, if any, are concerned, theDepartment will be at liberty to proceed but willkeep in abeyance the launching of prosecutionbefore the Court concerned till the next date ofhearing i.e. 02.02.2015. We also direct that on02.02.2015, the priority of hearing will be given tothe appeal questioning the penalty. Copy of thisorder be supplied to both the parties.” 17.02.2015 and 18.05.2015. In between, the stay application wastaken up for hearing on 13.02.2015 and while adjourning the matterto 27.02.2015, interim order dated 23.01.2015 was ordered tocontinue. The application for stay, finally came up for hearing on23.03.2015, when the Tribunal granted a stay against initiation ofprosecution. A perusal of this order reveals that the Tribunal hasrecorded a finding that it is empowered by Section 254 of the Act tostay prosecution. The said finding is the bone of contention betweenthe parties. 17.02.2015 and 18.05.2015. In between, the stay application wastaken up for hearing on 13.02.2015 and while adjourning the matterto 27.02.2015, interim order dated 23.01.2015 was ordered tocontinue. The application for stay, finally came up for hearing on23.03.2015, when the Tribunal granted a stay against initiation ofprosecution. A perusal of this order reveals that the Tribunal hasrecorded a finding that it is empowered by Section 254 of the Act tostay prosecution. The said finding is the bone of contention betweenthe parties. After appraising submissions by counsel for the parties, thefindings recorded in the impugned order, the following questionswere framed:- “a) Whether Section 254 of the Income Tax Act, 1961empowers the Income Tax Appellate Tribunal tointerfere in prosecution proceedings either at thestage of show cause notice or at any other stage?empowers the Income Tax Appellate Tribunal tointerfere in prosecution proceedings either at thestage of show cause notice or at any other stage?b) Whether pendency of quantum appeals by theassessee and the revenue, appeals againstpenalty and appeals challenging orders passedconsequent to an order passed under Section 263of the Income Tax Act, would conferpower/jurisdiction upon the Tribunal to stay a showcause notice calling upon the assessee to showcause why prosecution be not launched?”assessee and the revenue, appeals againstpenalty and appeals challenging orders passedconsequent to an order passed under Section 263of the Income Tax Act, would conferpower/jurisdiction upon the Tribunal to stay a showcause notice calling upon the assessee to showcause why prosecution be not launched?” posed, would once again recapitulate that proceedings pendingbefore the Appellate Tribunal are an appeal challenging an orderpassed under Section 263 of the Act, a quantum appeal against anassessment order, passed pursuant to the order passed underSection 263 of the Act, and an order imposing penalty. The revenuehas served a notice upon the assessee to show cause whyprosecution be not launched. The Tribunal has recorded a finding,while directing the revenue to keep consideration of the show causenotice re-prosecution in abeyance that it is empowered by Section254(1) to pass such an order. An answer to the questions posed would requireconsideration as to the nature of the power conferred by Section 254of the Act. Section 254 of the Act as originally enacted did not conferpower upon the Income Tax Appellate Tribunal to grant stay. Adebate, therefore, raged whether Section 254 of the Act inhered thepower, to grant, stay. After considering the countors of Section 254of the Act as well as various precedents, the Supreme Court inIncome Tax Officer, Cannanore (supra) held as follows:- “According to the decision inBurhanpur Tapti MillLtd.v. Board of Revenue, Madhya Pradesh,,since the Board of Revenue had the power toadjudge the correctness of an order passed by theCommissioner under Section 22B reopening anassessment, the Board had also the power to staythe fresh assessment proceedings started by theAssistant Commissioner in pursuance of that order. It was said that the general principle wasthat in a taxing statute there was no room for whatcould be called the equitable construction, but thatprinciple applied only to the taxing part of thestatute and not to the procedural part. It hasfurther been observed that “where the legislatureinvests an Appellate Tribunal with powers toprevent an injustice, it impliedly empowers it tostay the proceedings which may result in causingfurther mischief.” and, thereafter, held as follows:- order. It was said that the general principle wasthat in a taxing statute there was no room for whatcould be called the equitable construction, but thatprinciple applied only to the taxing part of thestatute and not to the procedural part. It hasfurther been observed that “where the legislatureinvests an Appellate Tribunal with powers toprevent an injustice, it impliedly empowers it tostay the proceedings which may result in causingfurther mischief.” and, thereafter, held as follows:- Section 255(5) of the Act does empower theAppellate Tribunal to regulate its own procedure,but it is very doubtful if the power of stay can bespelt out from that provision. In our opinion, theAppellate Tribunal must be held to have the powerto grant stay as incidental or ancillary to itsappellate jurisdiction. This is particularly so whensection 220(6) deal expressly with a situationwhen an appeal is pending before the AppellateAssistant Commissioner, but the Act is silent inthat behalf when an appeal is pending before theAppellate Tribunal. It would well be said that whensection 254 confers appellate jurisdiction, itimpliedly grants the power of doing all such acts,or employing such means, as are essentially necessary to its execution and that the statutorypower carries with it the duty in proper cases tomake such orders for staying proceeding as willprevent the appeal if successful from being”rendered nugatory. A perusal of the aforesaid judgment reveals that the powerto grant stay was held to be inherent in Section 254, (as it existedbefore the power to grant stay was conferred),i.e., inhers a power todo all such acts or employ all such means, as are essential for theexercise of the power of appeal including the power to grant stay, inproper cases and to make such orders for staying proceeding toprevent the appeal, if successful being rendered nugatory. Thus, thepower to grant stay was read into Section 254 of the Act but to alimited extent. Section 254 (1) was, thereafter, amended and asexisting on the statute book, reads as follows:- “254(1)- The Appellate Tribunal may, after givingboth the parties to the appeal an opportunity ofbeing heard, “pass such orders thereon as it thinksfit” Provided that the Appellate Tribunal may, afterconsidering the merits of the application made bythe assessee, pass an order of stay in “anyproceedings relating to an appeal” filed under sub-section (1) of section 253, for a period notexceeding one hundred and eighty days from the date of such order and the Appellate Tribunal shalldispose of the appeal within the said period of stayspecified in that order” Counsel for the parties have fairly conceded that the Actdoes not empower the Tribunal to consider or entertain an appealagainst the legality or validity of a prosecution launched under theAct. The arguments for and against the impugned orders haveprimarily centered around the interpretation of the words “pass suchorders thereon as it thinks fit”, used in Section 254(1) and “anyproceedings relating to an appeal” used in the first proviso to Section254(1) of the Act, with counsel for the revenue urging that powerconferred by Section 254(1) to grant stay cannot be extended to anymatter, which is not subject matter of an appeal before the Tribunal,whether incidental or collateral but with counsel for the assesseeurging to the contrary, namely, that these expressions inhere aplenary power, in the Appellate Tribunal, to stay proceedings whichthough independent are intrinsically linked to the outcome of anappeal. A due consideration of the arguments, the statutoryprovisions and the precedents cited for and against reveal thatSection 254(1) confers the power to decide an appeal and “passsuch orders thereon as it thinks fit” and when read along with theproviso includes the power to pass interim orders, “in any proceedingrelating to an appeal”, thereby indicating that the stay order sopassed must relate to proceedings in the appeal pending before the Tribunal. The question that, however, requires an answer is whetherthese words and expressions would include the power to stayproceedings or orders, which are not appealable or appealed againstduring pendency of an appeal but are likely to be affected by theoutcome of the appeal. A key to the understanding of the power to grant stay lies inthe expressions “pass such orders thereon as it thinks fit” and “anyproceedings relating to an appeal”, used in Section 254(1) and theproviso appended thereto. The aforesaid expressions, in ourconsidered opinion, confine the power of a Tribunal, to pass aninterim order in relation to matters pending before the Tribunal and atbest to matters that are so intrinsically linked to the lis pendingbefore the Tribunal, as to be inseparable. The exercise of powermust be confined to matters that are directly and substantially inissue or matters that flow directly and substantially from the orderimpugned before the Tribunal but cannot be extended to matters inwhich the Tribunal has no jurisdiction even, though, these mattersmay be incidentally affected by the outcome of the appeal. This apart once it is accepted that proceedings forprosecution are independent of assessment and penalty, and theTribunal is neither the appellate nor the revisional authority in a casewhere prosecution is launched, the mere fact that the decision in theappeal may have an impact on the prosecution, in our consideredopinion, cannot be used to read into the expressions “pass suchNARESH KUMARorders thereon as it thinks fit” or “any proceedings relating to an2015.11.20 15:41I attest to the accuracy andauthenticity of this documentChandigarh appeal”, a power in the Tribunal to direct that prosecution or a showcause notice shall be kept in abeyance. There is another aspect ofthe case, namely, if such a power, as has been canvassed by theassessee, were available to the Tribunal, prosecution would have toawait the final outcome of proceedings up to the Supreme Court. We are unable to discern any legislative intent or power aswould confer upon the Tribunal power to stay consideration of a showcause notice proposing to initiate prosecution, by reading intoSection 254, the power to stay independent proceedings merelybecause they may be affected by the decision of a pending appeal.The legislature having conferred power to grant stay in terms, used inSection 254 (1) and the first proviso, we cannot add to or subtractfrom the words and expressions used in Section 254(1) or by aprocess of interpretation confer jurisdiction which legislature, in ourconsidered opinion, did not intend to confer. A prosecution being aconsequence of infractions by an assessee cannot be said to be actof harassment or mischief so as to confer power upon the Tribunal, toorder that prosecution shall be kept in abeyance. The judgment by the Delhi High Court in The Commissioner of Income Tax (Central-II)v. Income TaxAppellate Tribunal and others (supra), has to be read in thecontext of its own peculiar facts, namely, an order was passed underSection 263, restoring the assessment to the Assessing Officer, Theassessee filed an appeal. The Income Tax Appellate Tribunal, stayedassessment proceedings. The order was upheld, by the Delhi HighNARESH KUMARCourt as assessment proceedings were intrinsically linked to and not2015.11.20 15:41I attest to the accuracy andauthenticity of this documentChandigarh The judgment by the Delhi High Court in The Commissioner of Income Tax (Central-II)v. Income TaxAppellate Tribunal and others (supra), has to be read in thecontext of its own peculiar facts, namely, an order was passed underSection 263, restoring the assessment to the Assessing Officer, Theassessee filed an appeal. The Income Tax Appellate Tribunal, stayedassessment proceedings. The order was upheld, by the Delhi HighNARESH KUMARCourt as assessment proceedings were intrinsically linked to and not2015.11.20 15:41I attest to the accuracy andauthenticity of this documentChandigarh severable from the legality of the order passed, under Section 263,namely, jurisdiction to re-open an assessment. The situation in the present case, as already noticed, isentirely different. All that the revenue has initiated is a notice to showcause why prosecution be not launched. Admittedly, the Tribunal isneither the appellate nor the revisional forum against a prosecution. Aprayer for stay of prosecution or stay of the show cause would,therefore, have to be made by resort to other remedies providedunder law and not by praying for a stay before the Tribunal. It wouldalso be appropriate to point out that the notice to show cause whyprosecution be not initiated is a purely administrative act and it is onlyafter consideration upon the notice and the reply reaches fruition,may the assessee seek his legal remedies in accordance with law. As already recorded, the appeal may have a bearing on theconsideration of the show cause notice and the reply filed thereto,but we are not inclined to read into Section 254(1) or the provisothereto, power in a Tribunal to stay consideration of the show causenotice or the power to direct that the show cause notice be kept inabeyance. The judgments pressed into service by counsel for therevenue, namely,Gulab Chand Sharmav. H.P.Sharma etc., (1974)ILR 1 (Delhi), 190;P.Jayappanv. S.K.Perumal, First Income TaxOfficer, Tuticorin, 1984 (149) ITR, 692(Mad); P.Jayappanv.S.K.Perumal, First Income Tax Officer, Tuticorin,, 1984 (149) ITR,696(SC); Ashok Buscuit Works and Orsv. Income Tax Officer,NARESH KUMARHyderabad, 1988 (171) ITR 300 (AP): Rinkoo Steels and othersv.2015.11.20 15:41I attest to the accuracy andauthenticity of this documentChandigarh K.P.Ganguli, Income Tax Officer and another, 1989 (179) ITR 482(Delhi);Sant Parkash and Ors. V. Commissioner of Income taxand Ors., 1991 (188) ITR 732 (P&H):Universal SupplyCorporation and Ors.v. State of Rajasthan and another, 1994(206) ITR 222; Commissioner of Income Tax v. BhupenChampak Lal Dalal and Anr. Etc., 2001 (248) ITR, 830 (SC)are notrelevant as they only hold that prosecution is independent ofassessment proceedings. The judgment in The AssistantCommissioner, Assessment-II, Bangalore and orsv. VelliappaTextiles Ltd. and Ors., 2003(263) ITR, 550 (SC)pertains to thequestion whether a company can be prosecuted and is, therefore,not relevant at this stage. The judgment inMadras Bar Associationv. Uinon of India, 2014 (10) SCC 1, is also irrelevant as it does notadvance the arguments raised by counsel for the revenue. Consequently, we answer the two questions by holding thatwe cannot read into Section 254 of the Act, any power in the IncomeTax Appellate Tribunal to interfere in a prosecution under the Act,either at the stage of a show cause notice or at any other stage. Thependency of appeals regarding quantum and penalty and an appealchallenging an order passed under Section 263 would not, in ourconsidered opinion, confer power upon the Tribunal to stayconsideration of a show cause notice calling upon the assessee toshow cause why prosecution be not launched. Before we part with the judgment, we would like to clarify have not recorded any opinion with respect to any other remedy thatmay or may not be available to the assessee against the show causenotice. Consequently, we answer the two questions by holding thatwe cannot read into Section 254 of the Act, any power in the IncomeTax Appellate Tribunal to interfere in a prosecution under the Act,either at the stage of a show cause notice or at any other stage. Thependency of appeals regarding quantum and penalty and an appealchallenging an order passed under Section 263 would not, in ourconsidered opinion, confer power upon the Tribunal to stayconsideration of a show cause notice calling upon the assessee toshow cause why prosecution be not launched. Before we part with the judgment, we would like to clarify have not recorded any opinion with respect to any other remedy thatmay or may not be available to the assessee against the show causenotice. Consequently, the writ petition is allowed and orders dated23.01.2015 (Annexure P-12) and 25.03.2015 (Annexure P-16),passed by the Income Tax Appellate Tribunal, Delhi Bench, NewDelhi, are set aside. (RAJIVE BHALLA) JUDGE 31[st] October, 2015nt (REKHA MITTAL) JUDGE