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Commissioner of Sales Tax Vs. Preetam Singh and Company - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberSales Tax Revision No. 221 of 1982
Judge
Reported in[1983]53STC259a(All)
AppellantCommissioner of Sales Tax
RespondentPreetam Singh and Company
Advocates:Standing Counsel
DispositionPetition dismissed
Cases ReferredModi Industries Limited v. Commissioner of Sales Tax
Excerpt:
- .....on behalf of the commissioner of sales tax. a single member bench of the tribunal dismissed the stay application.4. aggrieved, the commissioner of sales tax has filed this revision.5. the argument raised on behalf of the commissioner of sales tax is that since the amount of tax involved in the matter was more than r5,000, a single member bench of the tribunal was not competent to dispose of the stay application.6. this submission is based on the provisions of section 10(10)(a)(i) and (ii) of the sales tax act, which reads as under :10. (10)(a) an appeal against the order of the appellate authority under section 9 shall be heard and disposed of-(i) by a bench of one member, where such order is passed by an assistant commissioner (judicial) and the amount of tax, fee or penalty in.....
Judgment:

B.N. Sapru, J.

1. This is a revision by the Commissioner of Sales Tax.

2. The assessee had appealed against an assessment order to the Assistant Commissioner (Judicial) who set aside the order appealed against and remanded the matter to the assessing authority.

3. The Commissioner of Sales Tax was aggrieved by the order of remand and filed an appeal before the Tribunal. The application for stay of further proceedings consequent upon the order of remand was moved on behalf of the Commissioner of Sales Tax. A single member Bench of the Tribunal dismissed the stay application.

4. Aggrieved, the Commissioner of Sales Tax has filed this revision.

5. The argument raised on behalf of the Commissioner of Sales Tax is that since the amount of tax involved in the matter was more than R5,000, a single member Bench of the Tribunal was not competent to dispose of the stay application.

6. This submission is based on the provisions of Section 10(10)(a)(i) and (ii) of the Sales Tax Act, which reads as under :

10. (10)(a) An appeal against the order of the appellate authority under Section 9 shall be heard and disposed of-

(i) by a Bench of one member, where such order is passed by an Assistant Commissioner (Judicial) and the amount of tax, fee or penalty in dispute does not exceed five thousand rupees ;

(ii) by a Bench of two members, in any other case.

7. Section 10(10) of the Act deals with the final orders to be passed in the hearing and disposal of an appeal. Where the amount involved is not above Rs. 6,000 then, under Section 10(10)(a)(i), a single member can dispose of the appeal; whereas where the amount involved is more than Rs. 5,000, the appeal has to be disposed of by two members.

8. Section 10(6) of the Act vests powers in the Tribunal to stay the recovery of any disputed amount of tax, fee or penalty or refund of any amount due under the order appealed against till the disposal of the appeal.

9. Rule 69(5) of the U.P. Sales Tax Rules framed under the Act provides that an application for stay under Section 10(6) may be heard and disposed of by a single member irrespective of the amount involved.

10. This rule and Section 10(6) of the Act will not apply because here what the assessee (sic) sought was the stay of further proceedings consequent upon the order of remand passed by the Assistant Commissioner (Judicial).

11. In the case of Modi Industries Limited v. Commissioner of Sales Tax 1978 UPTC 759, the High Court was concerned with the powers of stay possessed by the High Court in a sales tax revision under Section 11 of the Act where an order of remand had been confirmed by the revising authority. It was urged by the learned standing counsel that the application for stay filed on behalf of the applicant should be dismissed as there was no power of granting a stay. A learned single Judge of this Court held that the High Court had inherent powers to grant a stay of recovery of taxes in a pending revision. It was further held that the revisional power is a projection of the appellate power and that the appellate power carries with it the power of granting stay and consequentially the revisional power carries with it the power of granting a stay. The Sales Tax Tribunal exercised appellate authority over the orders passed by the Assistant Commissioner (Judicial) under Section 10 of the Act. Consequentially, in an appeal from an order of the Assistant Commissioner (Judicial), the Tribunal had undoubtedly powers to stay further proceedings where an order of remand had been made by the Assistant Commissioner (Judicial).

12. Coming to the question as to whether a single member was competent to dispose of the stay application, it will be seen that under Section 10(11) of the Act, it is provided as follows :

The place of sitting and procedure of, and the manner of presenting appeals and other documents to the Tribunal shall, subject to the rules, be such as the Tribunal may deem fit to adopt.

13. The disposal of a stay application in a pending appeal is a matter of procedure and the Tribunal has thought fit to adopt a procedure wherein a single member of the Tribunal is competent to dispose of an application for stay against an order of remand. The procedure which had been adopted by the Tribunal cannot be said to be contrary either to the section or the Rules. The net result is that it must be held that a single member who rejected the stay application by the Commissioner was competent to do so.

14. In the result, the revision fails and is dismissed. There will be no order as to costs.


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