2003 (7) TMI 674 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Whether the Trade Tax Tribunal possessed the power to recall, vary, or modify a stay order granted earlier at a subsequent stage of proceedings.
2. Whether the impugned order can be said to be arbitrary and illegal.

Detailed Analysis:

Issue 1: Power of the Trade Tax Tribunal to Recall, Vary or Modify a Stay Order

The petitioner challenged the Tribunal's power to vacate a stay order, arguing that section 10(6) of the U.P. Trade Tax Act does not confer such power. However, the court found this argument to be misconceived. It emphasized that the power to pass an order includes the power to recall that order on sufficient grounds. The court referenced the Supreme Court's judgment in *Income-tax Officer v. M.K. Mohammed Kunhi*, which established that an express grant of statutory power carries with it the authority to use all reasonable means to make such grant effective. The court also cited the case of *M.P. Poddar Company v. Additional Judge (Revisions) Sales Tax*, which held that the Tribunal has the power to set aside an ex parte order as it is ancillary to its appellate jurisdiction. Consequently, the Tribunal has the power to recall, modify, or set aside a stay order at a subsequent stage of the appeal in appropriate cases.

Issue 2: Arbitrariness and Illegality of the Impugned Order

The petitioner argued that the Tribunal acted arbitrarily in vacating the stay order. The court examined Rule 68 of the U.P. Trade Tax Rules, 1948, and Regulation 11(iii)(d) of the Trade Tax Tribunal Regulations, 1988. It found that Regulation 11(iii)(d) allows the Tribunal to dispose of adjournment applications on such terms and conditions as it may deem fit. The court noted that these regulations, even if not statutory, are adopted by the Tribunal to ensure uniform practice and avoid arbitrariness, as held in *B.S. Minhas v. Indian Statistical Institute*.

The court further reasoned that the Tribunal's action in vacating the stay order was not arbitrary or whimsical, considering the petitioner had sought adjournments 14 times. The Tribunal's decision to vacate the stay order was seen as a reasonable measure to prevent the abuse of the stay order, which is intended to maintain status quo until the case's disposal. The court emphasized that the petitioner would not suffer irreparable loss due to the vacation of the stay order, as the reassessment proceedings would not conclude immediately.

The court also reviewed several cases cited by the petitioner, including *Taj Cutlery and Allied Agencies v. Commissioner of Sales Tax*, *Tara Glass & Chemical Industries v. Commissioner of Sales Tax*, *Lord Krishna Textiles Mill v. Commissioner of Sales Tax*, and *Inder Steels v. Commissioner of Sales Tax*. It found these cases distinguishable or not applicable to the present facts.

Conclusion:

The court concluded that the Tribunal possessed the power to recall, vary, or modify a stay order and that the impugned order was neither arbitrary nor illegal. The writ petition was dismissed summarily.