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TMI Blog1984 (11) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... 2), of the Central Sales Tax Act read with section 38(4) of the Bombay Sales Tax Act. The petitioners preferred an appeal from this order. The Assistant Commissioner of Sales Tax by his order dated 24th December, 1983 admitted the appeal on part payment of Rs. 6,700 instead of payment of the full amount of additional tax. He also granted stay of recovery proceedings in respect of the said sales tax dues. The said order was to be operative till the date of the decision of the appeal petition or the date on which the order was vacated, whichever was earlier. A copy of the said order was also forwarded to the Collector of Bombay with a request to stay the recovery proceedings. 2.. For the calendar year 1964 an assessment order was made in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of tax covered by stay order was not 'amount due' within the meaning of the proviso to section 43 of the Bombay Sales Tax Act, 1959?" 5.. In order to answer these questions it is necessary to look at the provisions of section 55, section 38 and section 43 of the Bombay Sales Tax Act, 1959 as they were in force at the relevant time. Section 55(5) of the Bombay Sales Tax Act, 1959 deals with appeals. The relevant provisions of section 55(5) 4t the relevant time were as follows: "No appeal, against an order of assessment with or without penalty .................. shall ordinarily be entertained by an appellate authority, unless such appeal is accompanied by satisfactory proof of the payment of the tax with or without penalty.......... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner or an appellate authority in an appeal under section 55 may, in respect of any particular dealer or person, and for reasons to be recorded in writing, extend the date of payment, or allow him to pay the tax or penalty (if any) or the sum forfeited, by instalments." Section 43 deals with refund of excess payments. Section 43 at the relevant time was as follows: "The Commissioner shall refund to a person the amount of tax and penalty (if any) paid by such person in excess of the amount due from him. The refund may be either by cash payment or, at the option of the person by deduction of such excess from the amount of tax and penalty due in respect of any other period: Provided that, the Commissioner shall first apply su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yed. Presumably by "coercive" proceedings, Mr. Jetly is referring to proceedings taken by the Collector of Bombay for the recovery of tax. This is only one method of recovering tax. Under section 43 tax can also be recovered by withholding any refund of excess payment made by the assessee. When recovery proceedings are stayed, such withholding of refund, which is by way of recovery of tax, is also prevented. The order of adjustment, therefore, in the present case is bad and the Tribunal was correct in allowing the appeal of the assessee. 7.. It is not the contention of the department that the stay order is without jurisdiction. But there is a dispute about the section under which the stay order is passed. The appellate authority has the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and proper. There is no reason to restrict this power, which is conferred in very wide terms, to only final orders. And it is therefore possible to view the stay order as an order passed under section 55(6). 9.. Under section 38, sub-section (4), however, the appellate authority has an express power to extend the date of payment of tax or allow the assessee to pay the tax by instalments. By staying the recovery of tax due till the disposal of the appeal, the appellate authority has, in effect, extended the date of payment of tax. Hence the stay order is an order under section 38(4). It is conceded by Mr. Jetly that had the order of stay been an order under section 38(4), then the power of adjustment under section 43 could not have been ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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