1991 (1) TMI 422 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Constitutionality of sub-section (3A) and sub-section (5) of section 22 of the Karnataka Sales Tax Act, 1957.
2. Legislative power to amend statutes affecting the right to grant interim orders.
3. Applicability of judicial precedents in the context of the amended provisions.

Issue-wise Detailed Analysis:

1. Constitutionality of sub-section (3A) and sub-section (5) of section 22 of the Karnataka Sales Tax Act, 1957:

The writ petitioners challenged the amended provisions of sub-section (3A) and sub-section (5) of section 22 of the Karnataka Sales Tax Act, 1957, as unconstitutional and ultra vires. They argued that the Legislature, having provided for an appeal to the Appellate Tribunal, could not take away the power to grant interim orders. The learned single Judge accepted this contention and struck down the amended provisions. However, the High Court, upon appeal, disagreed with this view, stating that the Legislature has the authority to prescribe conditions for the exercise of the right to appeal, including the removal of the power to grant interim orders.

2. Legislative power to amend statutes affecting the right to grant interim orders:

The appellants argued that an appeal is a mere creature of statute, and the Legislature which confers such a right can equally take it away or prescribe conditions for its exercise. They contended that the right of appeal may exist even without the power to grant a stay, and taking away the power of granting stay does not affect the right of appeal, which is neither a fundamental nor a constitutional right. The Court supported this view, emphasizing that the right of appeal is a statutory right and not an inherent or fundamental right. The Court further noted that the Legislature can impose conditions on the exercise of the right to appeal, including the removal of the power to grant interim orders.

3. Applicability of judicial precedents in the context of the amended provisions:

The petitioners relied on several Supreme Court decisions, including Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh, Garikapati Veeraya v. Subbiah Choudhry, and Income-tax Officer v. Mohammed Kunhi, to support their contention. However, the Court distinguished these cases, stating that they did not address the specific issue of whether the Legislature could take away the power to grant stay by subsequent amendment after creating a right of appeal. The Court found that these precedents were not applicable to the present case.

In particular, the Court noted that in Income-tax Officer v. Mohammed Kunhi, the Supreme Court held that the Appellate Tribunal had the power to grant stay by necessary implication under section 254 of the Income-tax Act, 1961, due to the wide powers conferred on it. However, the Court distinguished this case by pointing out that the Karnataka Sales Tax Act, as amended, specifically took away the power of the Appellate Tribunal to grant stay, unlike the Income-tax Act, where no such specific prohibition existed.

The Court also referred to the case of Basant Kumari v. State of Madhya Pradesh, where it was held that the power to grant stay is incidental to the appellate jurisdiction. However, the Court found that this decision did not advance the petitioners' case, as restitution was possible in the present case even if the tax or penalty was paid during the pendency of the appeal.

The Court further cited decisions such as Nemkumar Kesrimal v. Commissioner of Sales Tax, Subhash Chander & Co. v. State of Punjab, and Sri Gulshan Trading Company v. State of Uttar Pradesh, which consistently held that the right of appeal is a statutory right and the Legislature can impose conditions on its exercise.

Conclusion:

The High Court concluded that the amended provisions of sub-section (3A) and sub-section (5) of section 22 of the Karnataka Sales Tax Act, 1957, did not violate the Constitution. The Court upheld the legislative power to amend the statute and impose conditions on the right to appeal, including the removal of the power to grant interim orders. Consequently, the appeals were allowed, the orders of the learned single Judge were set aside, and the writ petitions were dismissed.