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TMI Blog2023 (8) TMI 1129X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals pertaining to the Assessment Years fallen prior to 01.07.1985 because w.e.f the said date, Section 21 of APGST Act, 1956 was amended and sub section 6 and 6(a) were introduced. Section 6(a) created an express embargo of granting stay pending disposal of the appeal filed against the order of first appellate authority or deputy commissioner suo moto or in revision. Thus, it can be said that the incidental or ancillary power to pass interlocutory orders in the main appeal is inherent or intrinsic in its substantive power of the Appellate Court or Tribunal to decide the appeal pending before it unless such ancillary or incidental power is taken away by an express provision or by necessary implication. Whether such stay granting power is expressly or impliedly taken away from the AP VAT Appellate Tribunal? - HELD THAT:- While under Section 33(1), a VAT Appellate Tribunal has been conferred jurisdiction to entertain an appeal against the orders specified in that sub-section, including against order passed on appeal under Section 31 as in the present case, Section 31 (6)(b) creates an express embargo on the stay granting power of VAT Appellate Tribunal pending disposal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke any steps for recovery of the balance disputed tax till disposal of the appeal in TA No.1/2022 pending before the respondent No.5. 3. Learned GP opposed the petition contending that in term of Section 31(3)(c) of AP VAT Act, 2005 r/w Rule 40 of AP VAT Rules, 2005, AP VAT Appellate Tribunal, Visakhapatnam/5th respondent has no jurisdiction to entertain the stay petition and therefore recovery of the tax need not be stopped on the ground that the petitioner filed stay application in the appeal filed before the 5th respondent. He prayed to dismiss the writ petition. 4. Per contra, the contention of learned counsel for the petitioner is that when an appellate tribunal is vested with power and jurisdiction to hear the appeal, it goes without saying that it has been vested with the ancillary power of passing interlocutory orders including stay order in the interest of justice and such a power is inherent in the appellate tribunal. 5. The point for consideration is whether the AP VAT Appellate Tribunal/5th respondent has no jurisdiction to entertain the stay application pending appeal before it in the circumstances of the present case? 6. We gave our anxious consideration t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) (a) Where an appeal is admitted under sub-section (1), the appellate authority may, on an application filed by the appellant and subject to furnishing of such security or on payment of such part of the disputed tax within such time as may be specified, order stay of collection of balance of the tax under dispute pending disposal of the appeal; (b) Against an order passed by the appellate authority refusing to order stay under clause(a), the appellant may prefer a revision petition within thirty days from the date of the order of such refusal to the Additional Commissioner or the Joint Commissioner who may subject to such terms and conditions as he may think fit, order stay of collection of balance of the tax under dispute pending disposal of the appeal by the appellate authority; (c) Notwithstanding anything in clauses (a) or (b), where a VAT dealer or TOT dealer or any other dealer has preferred an appeal to the Appellate Tribunal under Section 33, the stay, if any, ordered under clause (b) shall be operative till the disposal of the appeal by such Tribunal, and, the stay, if any ordered under clause (a) shall be operative till the disposal of the appeal by su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed supra, his appeal was dismissed at the inception and therefore there was no occasion for him to file any stay application before the Appellate Deputy Commissioner. Therefore, the question of said authority granting stay and the petitioner in terms of Rule-40 praying the Additional Commissioner or Joint Commissioner to continue his stay granted by Appellate Deputy Commissioner till disposal of his appeal before the AP VAT Appellate Tribunal also does not arise. 9. Thus briefly stating, the present case projects a situation where the petitioner had no occasion to file a stay application before Appellate Deputy Commissioner/4th respondent and consequently the question of the said authority either allowing or dismissing the said stay application did not occur. In essence, the petitioner for the first time files the stay application straight away before the AP VAT Appellate Tribunal. Hence the situations covered by Section 31(3)(c) and Rule 40 have not arisen in the instant case. In that view, the crucial question is whether AP VAT Appellate Tribunal can entertain the stay application and dispose it on merits. 10. The contention of learned Government Pleader is that whether in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not find it possible to separate this incidental/ancillary power from the substantive power. The substantive power to entertain and hear the appeal remains undisturbed. May be so, submits the learned Government Pleader, the said incidental power is clearly taken away with retrospective effect. We find it difficult to agree. The retrospective affect must be given either by express language, or must arise by necessary implications. We are not satisfied that any such intention is evidenced by the Amendment Act. (emphasis supplied) 12. In Penguin Textiles Ltd., Hyderabad v. State of Andhra Pradesh 1999 SCC OnLine AP 558 also, similar view was expressed by full bench of A.P. High Court. It is stated thus: 11. As a prelude to the discussion of the core question, we may recapitulate certain well-settled principles relevant to the remedy of appeal/revision and the passing of interim orders pending such appeal/revision. As long back as in the year 1968, the Supreme Court ruled in ITO v. Mohammed Kunhi, 71 ITR 815, that even though no express provision exists, the appellate Tribunal must be held to have power to grant stay as an incident of its appellate jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Tribunal; (b) The payment of tax and penalty, if any, due in accordance with the order of the first appellate authority or of the Deputy Commissioner under Section 21 or in revision under Section 32, in respect of which an appeal has been preferred under sub-section (1), shall not be stayed pending disposal of the appeal. Thus, as can be seen, while under Section 33(1), a VAT Appellate Tribunal has been conferred jurisdiction to entertain an appeal against the orders specified in that sub-section, including against order passed on appeal under Section 31 as in the present case, Section 31 (6)(b) creates an express embargo on the stay granting power of VAT Appellate Tribunal pending disposal of appeal passed against different orders including the order of the first appellate authority. Therefore, in view of the clear manifestation made by the express provision, we agree with the contention of learned GP that AP VAT Appellate Tribunal is not vested with the power or jurisdiction to entertain the stay application and pass orders in the present situation. 15. To sum up our discussion on the aspect of stay granting powers, (i) As per Section 31(3)(a), pending d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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