1971 (8) TMI 187 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Jurisdiction of the Tribunal to grant stay during the pendency of the second appeal.
2. Legislative intent and historical development regarding the Tribunal's power to grant stay.
3. Implied powers of the Tribunal versus express powers conferred on the Commissioner.

Issue-Wise Detailed Analysis:

Jurisdiction of the Tribunal to Grant Stay During the Pendency of the Second Appeal:
The primary issue for consideration was whether the Tribunal had the jurisdiction to grant a stay during the pendency of the second appeal. The Tribunal had granted an interim stay, which was challenged on the grounds that it lacked the jurisdiction to do so.

Legislative Intent and Historical Development Regarding the Tribunal's Power to Grant Stay:
The judgment delves into the legislative history to determine the intent behind the powers conferred on the Tribunal. Initially, the Orissa Sales Tax (Amendment) Act, 1954, provided for the constitution of a Tribunal with powers to grant stay. However, the relevant sections were never brought into force. Subsequently, the Orissa Sales Tax (Amendment) Act, 1957, removed the power to grant stay from the Tribunal. The Orissa Sales Tax (Amendment) Act, 1964, conferred the power to grant stay on the Commissioner during the pendency of an appeal. This was further reinforced by the Orissa Sales Tax (Amendment) Act, 1968, which explicitly granted the Commissioner the power to stay recovery during the pendency of the second appeal.

Implied Powers of the Tribunal Versus Express Powers Conferred on the Commissioner:
The judgment discusses the concept of implied powers, citing the principle from Maxwell on Interpretation of Statutes that "where 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." The Supreme Court's decision in Income-tax Officer, Cannanore v. M.K. Mohammed Kunhi is referenced, which held that the Appellate Tribunal under the Income-tax Act had implied powers to grant stay despite the absence of an express provision. However, the judgment distinguishes this case by noting that when express power is conferred on an authority, the implied power is excluded.

The judgment concludes that before the 1968 Act, the Tribunal had implied power to grant stay due to the absence of any express provision. However, after the 1968 Act conferred express power on the Commissioner to grant stay, the Tribunal's implied power was effectively nullified. The judgment emphasizes that the exercise of implied power by the Tribunal would render the statutory restrictions on the Commissioner's power nugatory.

Conclusion:
The Tribunal does not have the jurisdiction to grant a stay during the pendency of the second appeal after the introduction of section 13(5) of the 1968 Act, which conferred express power on the Commissioner to grant stay. The writ application was allowed, and the impugned order of the Tribunal granting the stay was quashed. The parties were ordered to bear their own costs.