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TMI Blog2009 (3) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... The said order was challenged by the petitioner before the second respondent invoking section 16D of the TNGST Act. The assessment with respect to 2004-05 and the consequential proceedings are the subject-matter of W.P. (MD) No. 2146 of 2009. This issue relates to the assessment year 2004-05 and the total and taxable turnover was determined on the basis of the accounts submitted by the petitioner and an order of assessment was made on March 23, 2006. Subsequently, the order was revised under section 16 of the TNGST Act by redetermining the total and taxable turnover. The said order was challenged before the second respondent under section 16D of the TNGST Act. During the pendency of the proceedings before the second respondent, the first respondent has issued a notice of recovery. Aggrieved by the recovery proceedings, the petitioner has filed these two writ petitions. Submissions The learned counsel for the petitioner contended that the second respondent has no power to pass an order of stay of recovery of the sales tax during the pendency of the statutory proceedings under section 16D of the TNGST Act and as such, the first respondent should have kept the recovery pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pass fresh proceeding or order in such manner as may be directed: Provided that such proceeding or order against which any appeal or writ is pending shall not be entertained under this sub-section. (3) The order passed under sub-section (2) shall be final." Section 16D of the TNGST Act shows that the Special Committee was entrusted with a revisional jurisdiction either suo motu or on application by the aggrieved assessee and on a careful consideration of the matter, if the Special Committee was of the opinion that the proceeding or order impugned before them was passed in violation of the provisions of the Act or Rules made thereunder or without following the principles of natural justice, the Committee was empowered to set aside the proceeding and direct the assessing authority to make a fresh assessment. Therefore, wide powers are given to the Special Committee. When the Committee is given such wide powers to correct any other illegality in the order of assessment both suo motu and at the instance of an aggrieved assessee, the question is as to whether such a high power committee could regulate its own procedure and for maintaining the status quo during the pendency of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urts. 9.. Tribunals which fall within the purview of article 136(1) occupy a special position of their own under the scheme of our Constitution. Special matters and questions are entrusted to them for their decision and in that sense, they share with the courts one common characteristic; both the courts and the Tribunals are 'constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions'. (vide Durga Shankar Mehta v. Raghuraj Singh [1955] 1 SCR 267 at page 272; AIR 1954 SC 520 at page 522). They are both adjudicating bodies and they deal with and finally determine disputes between parties which are entrusted to their jurisdiction. The procedure followed by the courts is regularly prescribed and in discharging their functions and exercising their powers, the courts have to conform to that procedure. The procedure which the Tribunals have to follow may not always be so strictly prescribed, but the approach adopted by both the courts and the Tribunals is substantially the same, and there is no essential difference between the functions that they discharge. As in the case of courts, so in the case of Tribunals, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the departmental authorities are set aside. It is difficult to conceive that the Legislature should have left the entire matter to the administrative authorities to make such orders as they choose to pass in exercise of unfettered discretion. The assessee, as has been pointed out before, has no right to even move an application when an appeal is pending before the Appellate Tribunal under section 220(6) and it is only at the earlier stage of appeal before the Appellate Assistant Commissioner that the statute provides for such a matter being dealt with by the Income-tax Officer. It is a firmly established rule that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective (Sutherland's Statutory Construction, Third Edition, articles 5401 and 5402). The powers which have been conferred by section 254 on the Appellate Tribunal with widest possible amplitude must carry with them by necessary implication all powers and duties incidental and necessary to make the exercise of those powers fully effective. . ." In a recent decision reported in Pareena Swarup v. Union of India [2008] 13 SCALE 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held (SCC at page 123, para 6) 'the difficulty we face here cannot force us to abandon the inherent powers of the court to do', and he quoted Jim R. Carrigan to say: 'The inherent power has its roots in necessity and its breadth is coextensive with the necessity.' H.R. Khanna, J. observed in Jaipur Mineral Development Syndicate v. Commissioner of Income-Tax [1977] 106 ITR 653 (SC); [1977] 1 SCC 508 (SCC page 511, para 5). 'The courts have power, in the absence of any express or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the court. To hold otherwise would result in quite a number of cases in gross miscarriage of justice.' Jurisdiction to pass procedural orders though not specifically contemplated by statute can be spelled out from what was said by Hidayatullah, J. (as he then was) in Mahanth Ram Das v. Ganga Das AIR 1961 SC 882 when orders are 'in essence in terrorem, so that dilatory litigants might put themselves in order and avoid delay' the courts are not powerless to meet a situation for 'such orders are not like the law of the Medes and the Persians' (AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has to be exercised only within the four corners of the statute and the exercise of powers must be for rendering justice. While exercising the inherent jurisdiction, the Special Committee should record reasons which made them to pass such interlocutory orders during the pendency of the statutory proceedings. In case reasons are supplemented in the order, it would avoid an arbitrary exercise of power. The order should speak itself. When a challenge is made in respect of such orders, it would enable the court to ascertain the reasons which actually weighed with the authority in taking a decision. Therefore, I am of the opinion that the second respondent has got the inherent powers to entertain an application to pass such interlocutory orders during the pendency of the statutory revision. In such circumstances, I am of the view that the petitioner should be permitted to make an application before the second respondent to stay the further proceedings during the pendency of the statutory revision. Accordingly, the petitioner is granted liberty to file a stay petition before the second respondent and in the event of filing any such application within a period of two weeks from the da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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