9911796707
TMI Blog2003 (7) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... sought for by the petitioner, but vacated the earlier stay order dated July 10, 1995. The brief facts for disposal of the present writ petition are as follows: 2.. The petitioner was reassessed under section 21 of the Act. The said reassessment order was challenged in appeal before the first appellate authority. The first appellate authority set aside the reassessment order and remanded back the matter for passing fresh reassessment order after verifying the facts from the books of account, vide order dated May 29, 1995. Aggrieved against the aforesaid order the petitioner filed two appeals namely, Second Appeals Nos. 249 of 1995 and 250 of 1995 for the assessment years 1986-87 and 1987-88 respectively and obtained stay order dated Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isposal of appeal. 6.. Learned Standing Counsel has placed reliance upon Trade Tax Tribunal Regulations, 1988. He brought to my notice regulation 11(iii)(d) of the said Regulations, which reads as under: Regn. 11. Filing and disposal of stay and waiver application. (i) . (ii) (iii)(a) (d) Every application for adjournment shall be submitted well in time or latest by 10.30 a.m. before the commencement of hearing of regular cases after supplying a copy thereof to the opposite party. Such adjournment application may be disposed of then and there on such terms and conditions as may be deemed fit. 7.. He submitted two-fold arguments. Firstly, that power to pass an order includes the power to withdraw the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and duties incidental and necessary to make the exercise of those powers fully effective. In Domat's Civil Law (Cushing's edition, volume 1), at page 88, it has been stated: 'It is the duty of the Judges to apply the laws, not only to what appears to be regulated by their express dispositions, but all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it.' Maxwell on Interpretation of Statutes, eleventh edition, contains a statement at page 350 that '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. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der sub-section (6) of section 10 of the Act. It will therefore include power to recall the stay order in appropriate cases. The Tribunal has got power to recall/ modify or set aside the stay order at this subsequent stage of appeal in appropriate cases. The argument of the learned counsel is that the Tribunal does not possess any power to recall or modify the stay order is too wide and cannot be accepted. 9.. Rule 68 of U.P. Trade Tax Rules, 1948 provides the manner of disposal of appeal. The said rule has no relevancy to the controversy involved in the case. The second appeals are still pending decision before the Tribunal. 10.. A bare perusal of the regulation 11(iii)(d) of Trade Tax Tribunal Regulations shows that application for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of this Court on the point it must be held to be obligatory on the part of the respondent No. 1 to follow the bye-laws, if the bye-laws have been framed for the conduct of its affairs to avoid arbitrariness. Respondent No. 1 cannot, therefore, escape the liability for not following the procedure prescribed by bye-law 2. 13.. In view of the above argument of learned counsel for the petitioner that the said rule being not statutory no reliance can be placed has no force. Having held that Tribunal can recall an order including stay order the next question arises under what circumstances recall of stay order can be justified? It is not possible to give exhaustive events. Action of the Tribunal would be judged on the principles of reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncluded in a day or two. 15.. It has been held in the following cases that fresh orders passed after remand by the assessing authorities are dependent on the assumption that they had valid jurisdiction to make the assessment on the assessee. The necessary conclusion is as soon as the remand order is set aside, the order passed by the assessing authority in pursuance of remand order automatically becomes non est. (1) 1984 UPTC 1122 (Ameer Chand Singh v. Commissioner of Sales Tax). (2) 1998 Revenue Decision 232 (Lalta Prasad v. Deputy Director of Consolidation). 16.. The counsel for the petitioner contended that stay order of at least six weeks should be granted. I am not prepared to accept the said contention of counsel for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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