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TMI Blog1987 (6) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... lenged herein. For a proper appreciation of the question arising herein it is necessary to refer to certain provisions of the Act as they stood prior to the Amendment Act 18 of 1985 and also thereafter. We shall first refer to the position obtaining prior to the Amendment Act. Section 19 provided for an appeal by the dealer against an order of assessment or against an order reopening the assessment. The power of reopening the assessment could be exercised under sub-section (4) of section 14 by the assessing authority. Sub-section (4-C) of section 14 however vested the said power in the higher officers as well, i.e., in the Deputy Commissioner and Joint Commissioner. Sub-section (2-A) of section 19 conferred power on the appellate authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal under section 19, or revision under section 20. Sub-section (6) was struck down, as being violative of article 14 of the Constitution of India, by a Bench of this Court in K. Balakrishnaiah v. Commercial Tax Officer [1972] 29 STC 328 with the result that the Tribunal was granting stay pending the appeals, in appropriate cases, in exercise of its incidental/ancillary power to grant stay. In other words, the Tribunal was holding the view that the substantive power of hearing the appeal conferred upon it, also conferred upon it the incidental/ancillary power to grant stay pending such appeal in appropriate cases. The above position continued till 1st July, 1985, when the aforesaid Amendment Act came into force. The Amendment Act does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , i.e., where the appeal is preferred against an order of the Deputy Commissioner passed under section 14(4-C) or under section 20(2), stay can be granted, not by the Tribunal but by the Joint Commissioner to whom an application must be made by the dealer in that behalf. The result of the above provisions is that the Tribunal has been deprived altogether of the power to grant stay pending the appeal. The validity of the provision depriving the Tribunal of this power altogether is not questioned before us. What is, however, in issue is whether the said deprivation has retrospective effect or not. That is the limited question we have to answer. It is contended by the learned Government Pleader for Commercial Taxes, that the power to grant s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect. We find it difficult to agree. The retrospective effect must be given either by express language, or must arise by necessary implication. We are not satisfied that any such intention is evidenced by the Amendment Act. We can illustrate our view by giving an example. Take a situation where the very right of appeal has been taken away by the Amendment Act. In such a situation, it cannot be disputed that in the case of assessment years falling prior to the Amendment Act, the right of appeal would be saved, and would be available. If the right of appeal remains available, the incidental/ancillary power to grant stay pending such appeal would also remain available. The question is whether the position would be worse where the right of appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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