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1971 (2) TMI 84 - HC - VAT and Sales Tax

Issues Involved:
1. Power of the appellate authority to grant stay of recovery of tax, fee, or penalty under the unamended section 9.
2. Power of the revising authority to grant stay of recovery under the unamended section 10(3).
3. Retrospective application of the amended sections 9 and 10 of the U.P. Sales Tax Act.

Issue-wise Detailed Analysis:

1. Power of the Appellate Authority Under Unamended Section 9:
The petitioner argued that under the unamended section 9, the appellate authority had the unconditional power to stay the realization of tax, fee, or penalty assessed under the Act. The court examined this argument and noted that the unamended section 9 did not explicitly confer such power. The second proviso to section 9, which states that the appellate authority shall not exercise any powers or perform any functions except those conferred on or entrusted to it, was considered. The court concluded that the language of this proviso does not exclude the enjoyment of implied powers. However, the court ultimately held that the right to stay the amount of tax, fee, or penalty assessed is not an integral part of the right of appeal, and thus, the appellate authority under the unamended section 9 did not have the power to grant a stay.

2. Power of the Revising Authority Under Unamended Section 10(3):
The petitioner contended that even if the appellate authority did not have the power to grant a stay under the unamended section 9, the revising authority had such power under the unamended section 10(3). The court acknowledged that the unamended section 10(3) did empower the revising authority to stay the recovery of tax, fee, or penalty if an appeal or revision was pending. However, the court noted that the amended sub-section (4) of section 10 curtailed this power, requiring the dealer to furnish satisfactory proof of the payment of at least one-third of the disputed amount of tax, fee, or penalty in addition to the amount required under section 9. The court held that the right to apply for a stay is not an integral part of the right to appeal and that the revising authority's power to grant a stay is now less extensive than it was before the amendment.

3. Retrospective Application of Amended Sections 9 and 10:
The petitioner argued that the amendments to sections 9 and 10, which curtailed the powers of the appellate and revising authorities to grant stays, should not apply retrospectively. The court examined the legislative intent and concluded that the amendments were not given retrospective effect. Therefore, the petitioner's application for a stay should be considered under the unamended sections. However, the court reiterated that the right to stay is not an integral part of the right of appeal and that the amendments to sections 9 and 10 have validly curtailed the powers of the appellate and revising authorities.

Conclusion:
The court dismissed the petition, holding that neither the appellate authority under the unamended section 9 nor the revising authority under the unamended section 10(3) had the unconditional power to grant a stay of the realization of tax, fee, or penalty. The amendments to sections 9 and 10 were not given retrospective effect, but the right to apply for a stay is not an integral part of the right to appeal. Therefore, the petitioners' application for a stay is governed by the amended provisions, which require the payment of a portion of the disputed amount before a stay can be granted. The petition was dismissed with costs.

 

 

 

 

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