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TMI Blog1994 (1) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... re was stated to have been inspected by the officers of the Assessment Wing on April 8, 1989. On verification of the records, it was found that movements from Coimbatore to Palghat were as a result of specific orders from the buyers; that the goods were, though purported to have been consigned to the Palghat branch, actually delivered to the ultimate buyers by the same lorry, which proceeded from Coimbatore: that the "pro forma invoice" prepared by the Coimbatore office for the stock transfers exactly tallied with the sales invoices raised by the Palghat branch on the ultimate buyers and therefore the "stock transfer" was not real and that the direct inter-State sales from the Coimbatore branch to the ultimate buyers in Kerala were sought to be projected as stock transfers to Palghat branch. 4.. Consequently, the first respondent-assessing officer reopened the assessments for the years 1984-85 to 1986-87 revoking the exemption already granted on such stock transfers and for the years 1987-88 to 1989-90 disallowed the exemption claimed therefor. 5.. Aggrieved by the denial of such exemptions, the petitioner, it is said, filed six appeals, namely, A.P. Nos. 6 to 8, 45 and 52 of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Assistant Commissioner (CT), Central Assessment Circle-1, Madras." 10.. The Tribunal, after taking into consideration various precedents, on which implicit reliance had been placed, ultimately recorded a finding that those precedents are not at all applicable and consequently they are not helpful, as not being applicable, to the facts of the case. 11.. On the merits of the case, the Tribunal recorded a finding in paragraph 16 thus: "16. Further by the order of remand by the Deputy Commissioner (CT), Madras (North), no payment of tax by the appellant arises and no prejudice is caused to the petitioner, if stay is not granted regarding further proceedings of the Assistant Commissioner (CT), Central Assessment Circle 1. Therefore no question of any balance of convenience or prejudice arises in this case." Ultimately, the Tribunal dismissed all the stay applications, giving rise to the present actions praying for issue of writs of certiorarified mandamus to quash the same and direct the Tribunal to dispose of the same afresh in accordance with law." 12.. Petitioners also filed W.M.P. Nos. 33018 to 33023 of 1993 praying for stay of all further proceedings, pending disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 482 of the Code of Criminal Procedure, 1974, to give the relief as sought for by the petitioner. 16.. As rightly contended by learned Government Advocate (Taxes), no provision is available in the TNGST Act vesting "inherent power" in any of the authorities thereunder. However, appellate jurisdiction had been conferred upon certain authorities thereunder by way of first and second appeals. While conferring such appellate jurisdiction on such authorities, relevant provisions had been made to issue directions as regards payment of tax and penalties to have the effect of stay, pending disposal of the appeals. The stay that had been prayed for before the Tribunal was not in respect of recovery of tax and penalty, pending disposal of the appeals but was in respect of giving effect to the remand order passed by the first respondent, Assistant Commissioner. While making such a prayer, as already indicated, the initial mistake that had been committed by the petitioner by filing an application under section 36(5) of the TNGST Act, had been subsequently rectified at the instance of the office, by a communication emanating from the petitioner, in the sense of invocation of "inherent power" f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appeal. The law on the subject is laid down in Maxwell on the Interpretation of Statutes, 10th Edition, on page 361 in the following terms: '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. Cui jurisdictio explicari non potuit.' 4.. The order impugned reopens the assessment on certain grounds. The Board of Revenue is empowered to decide whether the principles of assessment set down by the Commissioner of Sales Tax are proper. If there was no scope for reopening the assessment, the resultant proceedings before the Regional Assistant Commissioner of Sales Tax would be an abuse of the process of the Court. It seems axiomatic that where the Legislature invests an Appellate Tribunal with powers to prevent an injustice, it impliedly empowers it to stay the proceedings which may result in causing further mischief. In such cases the refusal to stay the proceedings may make the appeal itself nugatory, if a reassessment is made in the meantime requiring the assessee to file another and costly appeal. A view of law which leads to such onerous results is prima faci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to grant the stay. (a) In a bid to find out an answer to such a question, their Lordships of the Division Bench of the Orissa High Court referred to the case of the Incometax Officer, Cannanore v. M.K. Mahammed Kunhi [1969] 71 ITR 815 (SC), as that case threw light directly on the question in issue-though it arose out of the Income-tax Act, 1961. (i) Section 254(1) of that Act deals with orders of the Appellate Tribunal. Sub-section (1) thereof lays down that the Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. Indisputably powers have not been expressly conferred upon the Appellate Tribunal to stay proceedings relating to the recovery of penalty or tax due from an assessee. Under section 220(6), power of stay by treating the assessee, as not being in default during the pendency of an appeal has been given to the Income-tax Officer only when an appeal has been presented under section 246 to the Appellate Assistant Commissioner. Thus, there is express provision in the Income-tax Act for stay of proceedings by the Income-tax Officer relating to recovery of penalty and tax when first appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in proper cases to make such orders for staying proceeding as will prevent the appeal if successful from being rendered nugatory." (b) After penning down the ultimate conclusion of their Lordships of the Supreme Court, the Division Bench of the Orissa High Court deduced the following two propositions: (i) 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. This implied power is incidental and ancillary to the exercise of the appellate jurisdiction. (ii) If, however, the statute confers express power on any authority to deal with a particular contingency, then by necessary implication that particular power is to be taken as excluded from the ambit of implied power. In other words, the theory of implied powers cannot be invoked when express jurisdiction has been conferred on any authority to exercise a particular power. 20.. Coming to the facts of the case on hand, as already adverted to, stay of giving effect to the remand order had alone been prayed for on all those stay applications and nothing more. Such a relief is capable of being granted only by the invocat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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