STATE OF ANDHRA PRADESH Vs. HINDUSTAN SHIPYARD LIMITED

JUDGEMENT

(1.) The limited question that arises in this batch "of writ petitions is whether the Tribunal has the power to grant stay in appeals before ic pertaining to the assessment years falling prior to 1-7-1985. The Tribunal has taken the view in a matter reported in Satyanarayana Traders & Others, vs. State of A. P. that it has such a power. The correctness of the said view is challenged herein.

(2.) For a proper appreciation of the question arising herein it is necessary to refer to certain provisions of the Act as they stood prior to the Amendment Act 18/1985 and also thereafter. We shall first refer to the position obtaining prior to the Amendment Act. Section 19 provided for an appeal by the dealer against an order of assessment or against an order reopening the assessment. The power of reopening the assessment could be exercised under sub-section (4) of Section 14 by the assessing authority. Sub-section (4-C) of Section 14 however vested the said power in the higher officers, as well i.e., in the Deputy Commissioner and Joint Commissioner. Sub-section (2-A) of Section 19 conferred power on the appellate authority to stay the collection of tax pending disposal of the appeal before it. Subsection (2B) provided that where the appellate authority refused to grant stay under sub-section (2A), the appellant may prefer a revision to the Joint Commissioner who was empowered to grant stay of collection of tax in dispute, pending disposal of the appeal by the appellate authority. Subsection (2C) provided further that where a second appeal is preferred by the dealer to the Tribunal, the stay granted by the Joint Commissioner under sub-section (2-B) shall be effective pending disposal of such appeal by the Tribunal, but where the order of stay was one passed by the appellate authority under sub-section (2-A), such order of stay shall not be effective or operative pending the appeal before the Tribunal unless the Joint Commissioner, on an application made by the dealer in that behalf, made a specific order to that effect. Section 20 (1) provided for an appeal to the Tribunal. The appeal was provided to the Tribunal both against an appellate order passed by the appellate authority under Section 19, as also against an order reopening the assessment passed by the Joint Commissioner or Deputy Commissioner suo motu under Section 14 (4-C) or an order (in revision) passed under sub-section (2) of Section 20 by the appropriate authority. Sub-section (6) provided that where an appeal is preferred by by a dealer against the order of the Deputy Commissioner of Commercial Taxes passed under Section 14 (4-C) or under Section 20 (2), the Joint Commissioner may, on an application filed by the dealer in that behalf, stay the collection of tax in dispute, subject to such terms and conditions as he may think fit, pending disposal of the appeal by the Appellate Tribunal.

(3.) Sub-section (6) was struck down, as being violative of Article 14 of the Constitution of India, by a Bench of this Court in K. Balakrishnayya vs. Commercial Tax Officer with the result that the Tribunal was granting stay pending the appeals, in appropriate cases, in exercise of its incidental/ancillary power to grant stay. In other words, the Tribunal was holding the view that the substantive power of hearing the appeal conferred upon it, also conferred upon it the incidental/ancillary power to grant stay pending such appeal in appropriate cases.