TMI Blog1971 (8) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. In section 23(3)(b) the following provision was made: "23. (3)(b) Notwithstanding that an appeal has been preferred under clause (a) the tax or the penalty due shall be paid in accordance with the assessment made in the case: Provided that the Tribunal may, in its discretion, permit the appellant to pay such tax or penalty in such number of instalments, or give such other direction in regard to the payment thereof as it thinks fit and shall communicate such order to the appellant and the authority against whose order such appeal has been preferred and a copy of such order shall also be sent to the Commissioner." Though the 1955 Act was enacted making provision for constitution of a Tribunal with the power to grant stay, sections 3-B and 9 were not brought into force at all. Section 1(2) of that Act laid down that sections 1, 2, 4, 5, 6, 7 and 11 shall come into force at once and the rest of the sections shall come into force on such date as the State Government may, by notification, appoint. The relevant sections 3-B and 9 not having been brought into force there was no constitution of any Tribunal as envisaged in that Act. 4.. The Orissa Sales Tax (Amendment) Act, 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dealer has presented an appeal under section 23 the Commissioner may, on an application in that behalf filed by such dealer within thirty days from the date of receipt by him of the notice under sub-section (4), in his discretion, stay the recovery of the amount in respect of which such notice has been issued or any portion thereof for such period as the Commissioner thinks fit." This proviso came into force with effect from 20th January, 1964. By section 10(c) of the Orissa Sales Tax (Amendment) Act, 1968 (Orissa Act 15 of 1968) (hereinafter to be referred to as the 1968 Act), section 13(5) of the 1947 Act was substituted as follows: "13. (5) If any amount is not paid by the due date in pursuance of a notice issued under sub-section (4) the Commissioner may direct that the dealer or the person, as the case may be, shall, in addition, pay by way of penalty a sum not exceeding one-half of the total amount due within thirty days from the date of service of notice upon the dealer or the person in this behalf: Provided that in the case of continuing default the penalty may be levied in instalments from time to time so however as not to exceed onehalf of the total amount due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : (i) The Act contains no express provision conferring power on the Tribunal to grant stay; on the contrary, the fact that the provision to grant stay in the 1955 Act was not brought into force and was subsequently omitted from the 1957 Act is clear evidence of the legislative intention that the Tribunal has no power to grant stay. (ii) Whatever may be the earlier position, after the passing of the 1968 Act, the Commissioner alone is competent to grant stay during the pendency of a second appeal and that the Tribunal has no such power. Mr. Mohanty, on the other hand, contends that prior to the 1968 Act the Tribunal had implied power to grant stay which was incidental and ancillary to the wide power conferred upon it for exercise of the second appellate jurisdiction and that such power still continues even after the 1968 Act came into force whereunder express power was conferred upon the Commissioner to grant stay during the pendency of the second appeal. The rival contentions require careful examination. 9.. Income-tax Officer, Cannanore v. M.K. Mohammed Kunhi[1969] 71 I.T.R. 815 (S.C.); A.I.R. 1969 S.C. 430. throws light directly on the question in issue though it arose out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 220(6) and it is only at the earlier stage of appeal before the Appellate Assistant Commissioner that the statute provides for such a matter being dealt with by the Income-tax Officer." Their Lordships' ultimate conclusion was summed up in paragraph 8 as follows: "In our opinion the Appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction. This is particularly so when section 220(6) deals expressly with a situation when an appeal is pending before the Appellate Assistant Commissioner but the Act is silent in that behalf when an appeal is pending before the Appellate Tribunal. It could well be said that when section 254 confers appellate jurisdiction, it impliedly grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution and that the statutory power carries with it the duty in proper cases to make such orders for staying proceeding as will prevent the appeal if successful from being rendered nugatory." 10.. The aforesaid decision thus firmly establishes the following (i) Where an Act confers a jurisdiction, it impliedly also grants the power of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I.R. 1958 Pat. 427., Haji Zakeria Suleman v. The Collector, Yeotmal, and OthersA.I.R. 1963 Bom. 233. A.I.R. 1969 S.C. 430. and Anand Prakash and Another v. Assistant Registrar, Co-operative Societies, and OthersA.I.R. 1968 All. 22. In J.K. Iron Steel Co. Ltd., Kanpur v. The Iron and Steel Mazdoor Union, Kanpur A.I.R. 1956 S.C. 231. , their Lordships observed thus: "All the same, wide as their powers are, these Tribunals are not absolute, and there are limitations to the ambit of their authority ..... Their powers are derived from the statute that creates them and they have to function within the limits imposed there and to act according to its provisions. Those provisions invest them with many of the 'trappings' of a court and deprive them of arbitrary or absolute discretion and power." 13.. In Income-tax Officer, Cannanore v. M.K. Mohammed Kunhi[1969] 71 I.T.R. 815 (S.C.);, their Lordships held that the Appellate Tribunal had power to grant stay on the theory of implied powers and not on the basis of the Tribunal possessing inherent powers corresponding to section 151, Civil Procedure Code. 14.. The learned Standing Counsel contended that there was marked difference in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y during the pendency of the second appeal. The conferment of such power indicates the legislative intention. When the Legislature conferred express power on the Commissioner to grant stay during the pendency of the second appeal, the occasion or necessity for invoking implied power disappears. As has already been pointed out, the basic theory underlying the exercise of implied power is that when an Act confers a jurisdiction it impliedly also grants the power of doing all such acts or employing such means as are essentially necessary to its execution. After the conferment of express power on the Commissioner the exercise of implied power by the Tribunal is not essentially necessary to the execution of its jurisdiction. Moreover, by the power conferred under section 13(5), proviso, the power to grant stay would be exercised by the Commissioner subject to an application in that behalf being filed by the dealer within sixty days from the date of receipt of the order of the first appellate authority. 17.. As to how a power of stay is to be exercised in the matter of taxation and revenue laws has been indicated in Income-tax Officer, Cannanore v. M.K. Mohammed Kunhi[1969] 71 I.T.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late order of the Assistant Commissioner. The implied power to be invoked by the Tribunal is not hemmed in with any such restriction. 20.. Mr. Mohanty places strong reliance on the following passage in Municipal Council, Palai v. T.J. JosephA.I.R. 1963 S.C. 1561. : "It is undoubtedly true that the Legislature can exercise the power of repeal by implication. But it is equally well settled that there is a presumption against an implied repeal. Upon the assumption that the Legislature enacts laws with a knowledge of all existing laws pertaining to the same subject the failure to add a repealing clause indicates that the intent was not to repeal existing legislation. Of course, this presumption will be rebutted if the provisions of the new Act are so inconsistent with the old ones that the two cannot stand together." This principle has no application to the present case. It applies to cases where there is repugnancy between the provisions of two separate statutes or in separate provisions in the same statute. The present case is not one of that category. Before the 1968 Act, there was no provision in the 1947 Act conferring power on any authority to grant stay during the pendency o ..... 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