S.R Venkatesha Murthy, J.:—
In all these cases, the question that has been raised is, whether, while exercising appellate power under Section 24 of the Karnataka Sales Tax Act, 1957 (hereinafter referred to as the Act), this Court has inherent power to stay the operation of the order appealed against.
2. Against the orders made under Section 22-A of the Act, an appeal is provided to this Court under the Act. Sub-Section (4) of Section 24 of the Act makes reference to sub-sections 6 to 8 of Section 23 of the Act as being applicable to appeals. Sub-section 6 of Section 23 reads as follows:
23(6) Notwithstanding that a petition has been preferred under sub-section (1), the tax shall be paid in accordance with the assessment made in the case:
Provided that if as a result of the petition, any change becomes necessary in such assessment, the High Court may authorise the assessing authority to amend the assessment and the assessing authority shall amend the assessment accordingly and thereupon the amount over paid by the assessee shall be refunded to him without interest or the additional amount of tax due from him shall be collected in accordance with the provisions of this Act, as the case may be.”
By operation of sub-section (4) of Section 24 of the Act, the above provision relating to stay is engrafted into Section 24 of the Act. The operation of sub-section (6) of Section 23 has been the bone of contention in this case.
2. In the case of Vijay Prakash D. Mehta v. Collector of Customs (Preventive), Bombay . 72 STC Page 324. the Hon'ble Supreme Court was called upon to examine the nature and content of appeal provisions under the Customs Act, 1962. The appellants before the Supreme Court who were caught red-handed with foreign exchange to the tune of Rs. 11,90,648/- were dealt with under the customs Act and a penalty of Rs. 3,00,000/- each was evied on them. The Appellate Tribunal reduced the penalty to Rs. 1,00,000/- each on an application made under Section 129-E of the Customs Act, pending hearing of the appeal the request having been declined, the appeal to the Supreme Court was filed. Various contentions were raised such as the right of appeal itself being ??? illusory by the imposition of condition regarding deposit of the penalty for hearing of the appeal. The Supreme Court negatived the contention by making the following observation at page 327 and 28:
“….Here the right that was granted, was a right held with a condition. There was no question of change of that right. In the instant case, the only substantive right is the right of appeal as contemplated under Sections 129A and 129E of the Act and that right is a conditional one and the legislature in its wisdom has imposed that condition. No question of whittling down that right by an alteration of procedure arises in this case.
Right to appeal is neither an absolute right, nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant.
3. In the instant case, Mr. Sarangan, the Learned Counsel for one of the appellants sought to contend that sub-section (6) of Section 23 of the Act would have to be read as a reiteration of the liability of the assessee to pay the tax and cannot be regarded as a bar on the power of this Court to grant stay of the operation of the impugned order. He further contended by placing reliance upon the decision of the Supreme Court in Income Tax Officer, Cannanore. v. M. K. Mohammed Kunhi. 71 ITR 815. that the scope of the power of a appellate tribunal includes the power to grant stay of recovery proceedings pending an appeal, being an incidental and ancillary power by implication. The observations relied upon by the learned Counsel for the appellant pertains to a reference under Section 254 of Income Tax Act. In the instant case, it cannot be inferred in the face of the statutory provisions referred to above that there is an inherent power vested in this Court to stay the impugned order.
4. It is useful to refer to other appeal provisions under the Act of 1957. Section 20 of the Act provides for appeals as enumerated under sub-section (1) of the same. sub-section (3) of Section 20 stipulates that an appeal shall not be entertained by the appellate authority unless it is accompanied by satisfactory proof of payment of tax and penalty not disputed in the appeal. It further stipulates that notwithstanding that an appeal has been preferred under sub-section (1), the tax or other amount shall be paid in accordance with the order against which the appeal has been provided. Proviso to sub-section (3) of Section 20 gives discretion to the appellate authority to give such directions as it thinks fit in regard to payment of tax or other amount payable under Clause (b) of sub-section 2 of Section 20, if the appellant furnishes sufficient security to its satisfaction in such form and in such manner as has been prescribed. It is clear from the above provision that the power of the appellate authority to stay the operation of the impugned order is governed by sub-section (3) of Section 20 and is not an absolute one. Clause (a) of sub-section (3) of Section 20 of the Act is a threshold bar for the entertainment of an appeal by the appellate authority while Clause (b) of sub-section (3) of Section 20 of the Act read with the proviso regulates the power of the appellate authority to grant stay of the impugned order.
5. Section 22 of the Act deals with appeals to the appellate tribunal. Sub-section 5 of Section 22 reads as follows:
“22(5) Notwithstanding that an appeal has been preferred under sub-section (1), tax shall be paid in accordance with the assessment made in the case:
Provided that the appellate tribunal may (except in case of an appeal against an order passed by the (Deputy Commissioner) or (Joint Commissioner) under Section 20) in its discretion, give such directions as it thinks fit, in regard to the payment of tax, if the appellant furnishes sufficient security to its satisfaction in such form and manner as may be prescribed.”
It is clear from the above that even the appellants tribunal is not empowered to stay the operation of the impugned order but is empowered in its discretion to give such directions as it thinks fit in regard to payment of tax, if the appellant furnishes sufficient security ??? its satisfaction in such form and in such manner as may be described. Section 23 of the Act which provides for revisions to the High Court in certain cases, has incorporated sub-section (6) so far ??? it relates to stay of the proceedings. It is clear from sub-section (6) of Section 23 that notwithstanding the filing of a revision the tax shall be paid in accordance with the assessment made in the case. The proviso to sub-section (6) stipulates that depending on the ??? of the High Court in revision, the amount over paid by the assessee shall be refunded to him without interest or the additional amount of tax due from him shall be collected from him in accordance with the provisions of the Act. If as contended on behalf of the appellants that sub-section (6) of Section 23 merely reiterated the assessee's obligation to pay the tax determined, then there was no reason to incorporate sub-section (6) of Section 23 and include a proviso for adjustment of tax liability pursuant to the order of the High Court in revision by refund of the overpaid amount without interest or the recovery of the additional amount of tax due. The interpretation suggested on behalf of the appellants if accepted would render sub-section (6) redundant and its proviso meaningless. Similar situation is dealt with in Narula Trading Agency v. Commissioner, Sales Tax, Delhi . Vol. 47 ITR 45 FB. where it is observed as follows:
“The general rule is that appeal shall not be entertained by the appellate authority unless the tax or the penalty has been paid in respect of which the appeal is preferred, but the proviso says that the appellate authority may, if it thinks fit, for reasons to be recorded in writing, entertain an appeal against such order on the appellant furnishing security or on payment of such smaller sum with or without security for such amount of tax or penalty which remains unpaid as the Tribunal may direct. But in no case, an appeal shall be entertained by the appellate authority unless it is satisfied that such amount of tax as the appellant himself admits to be due from him has been paid. In matters of stay of recovery of revenue, the legislature is rather stringent because an unfettered power of stay can bring the wheels of the Government to a halt. But it does not mean that in a proper case the Appellate Tribunal cannot grant stay on terms.”
6. It is clear from the above decisions and the scheme of the Act of 1957, that there is no power vested in this Court to stay the impugned order while exercising its appellate jurisdiction under Section 24 of the Act of 1957. The arguments similar to the one raised in Vijay Prakash D. Mehta's case of extreme hardship resulting in a given case was also raised but they cannot be sustained in view of the observations of the Supreme Court in the case referred to above. In the circumstances, the applications for stay of the impugned order in these appeals stand dismissed.