TMI Blog1991 (1) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... in appeals filed before the Tribunal arising out of the appeals disposed of by the appellate authority, i.e., Deputy Commissioner, Commercial Taxes (Appeals), is taken away. 3.. The petitioners in the writ petitions principally contended that having provided for the appeal to the Appellate Tribunal, the Legislature could not have taken away the power to grant an interim order. The learned single Judge accepting this contention allowed the writ petitions and has struck down the amended provisions of sub-section (3A) and sub-section (5) of section 22 of the Act. Hence these appeals are filed by the respondents in the writ petitions challenging the orders of the learned single Judge. 4.. The learned Government Advocate appearing for the appellants urged: (i) an appeal is a mere creature of the statute and the Legislature which confers such a right can equally take it away or prescribe conditions for the exercise of the right which may be onerous or otherwise; (ii) the right of appeal may exist even without the power of granting stay because by taking away the power of granting stay the right of appeal is not taken away and the right of appeal is neither a fundamental nor a con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered was whether the right of appeal which accrued to the litigant on the date of institution of the suit, is preserved to the parties till the rest of the career of the suit? The Supreme Court again on the facts of that case held that the right of the plaintiff was governed by the law prevailing on the date of institution of the suit in the year 1949 which provided for final appeal to the Federal Court. In the case of Collector of Customs and Excise v. Bava AIR 1968 SC 13; [1968] 1 SCR 82, the Supreme Court laid down that the requirement of making deposit of the disputed duty along with the appeal filed under the Customs Act cannot be applied to the appeals filed under section 35 of the Central Excise Act, under which there was no such requirement of making such a deposit. 7.. Thus as can be seen from these three decisions the Supreme Court considered the law governing the right of appeal of the parties as on the date the proceedings were initiated and in none of these decisions the questions involved in cases on hand, came up for consideration, as to whether power of granting stay could be taken away by the Legislature by subsequent amendment having created right of appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wers. The Tribunal's powers in dealing with appeals are of the widest amplitude and have in some cases been held similar to and identical with the powers of an appellate court under the Code of Civil Procedure. In the said decision the argument advanced was that in the absence of any express provisions in sections 254 and 255 of the Act relating to grant of stay of recovery during the pendency of an appeal, no such powers could be exercised by the Tribunal. But looking to the very wide powers conferred on the Appellate Tribunal under section 254 of the Income-tax Act and the procedure to be followed by the Tribunal under section 255, the Supreme Court has held that the Appellate Tribunal with widest possible amplitude must carry with it by necessary implication all powers and duties incidental and necessary to make the exercise of those powers fully effective. Under section 254 or 255 of the Income-tax Act, no provision was made taking away the power of Appellate Tribunal granting stay. In the absence of any specific prohibition it was held as discussed already above, the Appellate Tribunal by necessary implication had all the powers and duties incidental and necessary to make the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red that the restitution would be practically impossible if the land in question has already been distributed to other persons as provided under the Act. In these cases even if the writ petitioners were to pay or deposit tax or penalty or any other amount payable during the pendency of the appeals in the absence of any stay orders, it cannot be said that the restitution is not possible particularly so when the appellants are State Government and its officers. Thus even this decision of Basant Kumari AIR 1990 MP 160, does not advance the case of the writ petitioners in any way. 12.. It is the firmly established judicial view that the right of appeal is not an inherent right so also it is not a fundamental right. The right of appeal is a mere creature of the statute and it is open to the Legislature which creates such a right equally to take away the same if necessary. The learned Government Advocate has cited the following decisions in support of his arguments: (i) [1955] 6 STC 222 (Nag.) (Nemkumar Kesrimal v. Commissioner of Sales Tax). (ii) [1979] 44 STC 331 (P H) (Subhash Chander Co. v. State of Punjab). (iii) [1971] 28 STC 487 (All.) (Sri Gulshan Trading Company v. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 14.. Section 22(3A) and 22(5) of the Act, as amended by Amendment Act 15 of 1988 has neither taken away nor curtailed nor crippled the right of appeal. What is taken away is only the power of the Appellate Tribunal to grant stay that too in second appeals. The learned Government Advocate effectively met the arguments of the writ petitioners that the amended provisions of the Act are opposed to article 14 of the Constitution of India by submitting that by amended provisions the power to grant stay is conferred on the Tribunal in case of appeals filed against the orders made under section 21, i.e., in case of first appeals and taken away the powers to grant stay in case of second appeals arising from the orders made under section 20 of the Act, and as such there is nothing to say that the amended provisions in question were violative of article 14 of the Constitution of India. In our view, this submission of the learned Government Advocate merits acceptance. 15.. Thus having considered carefully all aspects of the matter, we are unable to subscribe to the view taken by the learned single Judge. Consequently these appeals are entitled to succeed. Therefore, in the result, for t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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