Nagendra Prasad Singh, J.

This is a writ application for quashing an order dated 17th December, 1971 passed by the Income Tax Appellate Tribunal, Patna on a petition filed by the petitioner for staying the proceedings in I.T.A. No. 743/178-5B/69-70 pending before the Appellate Assistant Commissioner. By the impugned order the Income-Tax Tribunal has rejected the prayer of the petitioner for staying the proceedings referred to above. A copy of the said order is Annexure 5' to the writ application.

2. The petitioner had filed an appeal against the assessment order of the Income-Tax Officer for the year 1968-69 before the appellate Assistant Commissioner, Jamshedpur who by his order dated 8th June, 1971 found that the net receipt shown by the petitioner was Rs. 4,32,477.82 paise and the gross receipt was Rs. 7,12,379.95 paise and in the opinion of the appellate Assistant Commissioner there was no justification for the Income-Tax Officer to make estimate on the gross receipt. However, the Appellate Assistant Commissioner, in the concluding portion of the said order by mistake, mentioned net receipt of Rs. 4,34,955, instead of gross receipt of Rs. 7,12,379.95 paise. When this fact was brought to the notice of the Appellate Assistant Commissioner he purported to rectify the said mistake in exercise of power under section 154 of the Income-Tax Act and while rectifying the said mistake by the order dated 4th October, 1971, he cancelled the earlier order dated 8th June, 1971 by which the appeal of the petitioner had been allowed. A copy of the order dated 4th October, 1971 is annexure 3' to the writ application. The petitioner being aggrieved by the said order filed an appeal before the Income-Tax Appellate Tribunal making a grievance that the Appellate Assistant Commissioner could not, while rectifying the mistake in exercise of the power under section 154 of the Act, have cancelled the whole order by his order dated 4th October, 1971. The said appeal was admitted by the Income-Tax Appellate Tribunal and was pending disposal. Later when the Appellate Assistant Commissioner in pursuance of his order dated 4th October, 1971 purported to proceed with the matter, an application was filed before the Income-Tax Appellate Tribunal to stay further proceedings before the Appellate Assistant Commissioner. By the impugned order (Annexure, 5') the Income-Tax Appellate Tribunal, as already stated above, rejected the said prayer of the petitioner. The said tribunal while rejecting the prayer has observed that under the Income Tax Act there was no provision conferring any such power on the Tribunal to stay proceeding before the Appellate Assistant Commissioner or before the Income-tax Officer and hence the said application wag being rejected.

3. Mr. B.P. Rajgarhia, learned counsel for the petitioner has urged that the ground for rejecting the application for stay by the Tribunal was erroneous and as such there is an error apparent on the face of the said order inasmuch as the Tribunal was not right in rejecting the application for stay on the ground that it did not possess any such power. Learned Counsel has urged that a court of appeal has incidental power by way of granting interim relief during the pendency of an appeal although such power might not have been conferred under some statute and in this connection he has drawn our attention to a judgment of the Supreme Court in Income-tax Officer V. Mohammad Kunhi Their Lordships while considering the power of the Income Tax Appellate Tribunal to grant stay during the pendency of the appeal observed that the power of such Tribunal in dealing with appeals was of widest amplitude and in some cases the power was similar and identical to the power of an appellate court under the Code of Civil Procedure. Their Lordships observed as follows:

"Section 255 (5) of the Act does empower the Appellate tribunal to regulate its own procedure, but it is very doubtful if the power of stay can be spelt out from t