Panama Petroleum Products vs Appellate Deputy Commissioner (Commercial Taxes), Punjagutta Division, Hyderabad and Another

Yogeshwar Dayal, C.J.—Heard both the counsel, viz., Sri B. A. Padmanabha Rao, counsel for the petitioner and Sri A. Venkataramana, Government Pleader.

This writ petition is directed against an order dated 9th August, 1988, passed by the Appellate Deputy Commissioner (Commercial Taxes), Punjagutta Division, Hyderabad, dismissing an application for stay filed before it on the ground that since there is no provision in the A.P. General Sales Tax Act, 1957, it has no powers to stay the auction proceedings.

The appeal before the appellate authority arose in the following circumstances. In purported exercise of powers u/s 28, sub-section (6) of the aforesaid Act, the Commercial Tax Officer (Int.) No. V, Central Enforcement Wing, A.P., Hyderabad, passed an order dated 30th July, 1988, whereby the learned Commercial Tax Officer held that there was a deliberate attempt to evade tax in relation to bringing to Andhra Pradesh from Bombay 15 drums of lube oil valued at Rs. 16,380 and consequently directed the seizure u/s 28(6) read with rule 48(1) of the A.P. General Sales Tax Act and for appropriate action thereto. In view of this order of confiscation the Commercial Tax Officer fixed 17th August, 1988, for auction of the goods.

The petitioner, aggrieved by the order of confiscation dated 30th July, 1988, preferred an appeal u/s 19 of the Act to the appellate authority and also filed an application for stay of auction of the abovesaid goods fixed for 17th August, 1988. The appellate authority, has, by the impugned order dated 9th August, 1988, passed the aforesaid order declining to stay the auction on the ground that it has no such power.

Various types of orders are liable to be passed under various provisions of the A.P. General Sales Tax Act, 1957, like the order of assessment, reassessment, etc. There are orders which are liable to be passed u/s 28 of the Act, which are not assessment orders, but being different types of orders, one such order which can be passed is confiscation of certain goods in relation to which a dealer had evaded to pay sales tax. Against such orders, it is only one section which confers right of appeal and that is section 19 of the Act. Section 19(1) of the aforesaid Act gives unlimited right of appeal to the appellate authority is to pass orders as it may deem to think fit while suspending the orders. So far as the assessments are concerned, there is an elaborate provision as to what the appellate authority can do, and also in relation to assessment of tax, the appellate authority has also the power to stay collection of disputed tax pending disposal of the appeal. In regard to appeals preferred u/s 28, sub-section (6) of the Act, there is no provision as to what the appellate authority should do by way of interim relief during the pendency of appeal before it.

A similar problem came before the Honourable Supreme Court in the case of Income Tax Officer Vs. M.K. Mohammed Kunhi, . In this case the right of appeal was given to the Income Tax Appellate Tribunal u/s 254 of the Income Tax Act, 1961. But the other provisions of the Act were silent as to what orders it can pass during the pendency of an appeal. The Supreme Court took the view 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. 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 view of the pronouncement of the Supreme Court, we are inclined to take the view that the unlimited right of appeal given by section 19 of the Act against an order of confiscation carries with it the power to the appellate authority to exercise all incidental powers and duties, if necessary to make these powers effective. When the order of confiscation itself was challenged before the appellate authority, by necessary implication, the appellate authority will have the powers and duties to stay the sale proceedings in pursuance of the confiscation. The power of granting relief is available to the appellate authority as an incidental power to make the exercise of those powers fully effective.

We would accordingly set aside the order dated 9th August, 1988, passed by the appellate authority and direct the appellate authority to decide the stay application, which will be filed afresh, on the basis that it has power to grant relief of stay of auction during the pendency of the appeal against order of confiscation. The auction proceedings fixed for 17th August, 1988, will remain stayed till the consideration afresh by the appellate authority of the additional application for stay of auction.

The writ petition is allowed. No order as to costs. Advocate''s fee Rs. 150.

Writ petition allowed.