The Tribunal has no jurisdiction to grant a stay of the impugned order of assessment pending the disposal of the application for reference to the High Court under section 61 of the Bombay Sales Tax Act, 1959.

The judgment of the Court was delivered by

CHAPALGAONKAR, J. - This is a petition under article 226 of the Constitution of India, challenging the order passed by the President of the Maharashtra Sales Tax Tribunal, Bombay, dismissing the stay application filed by the present petitioners, holding that while an application for a reference to the High Court under section 61 of the Bombay Sales Tax Act, 1959, is pending before the Tribunal, the Tribunal has no jurisdiction to grant stay to the impugned order of assessment.

2. The petitioners have been assessed to pay a sales tax of Rs. 52,33,390 and were also directed to pay a sum of Rs. 52,11,000 as penalty. Against this order the petitioners have filed a second appeal before the Sales Tax Tribunal, which the Tribunal was pleased to dismiss. After dismissal of the second appeal, applications were moved bearing Nos. 16 to 25 in the various appeals filed by the present petitioners for making a reference under section 61 of the Bombay Sales Tax Act, 1959 and during the pendency of these applications it was submitted by the applicants-petitioners that the impugned order of assessment be stayed. These applications came to be rejected by the learned President of the Sales Tax Tribunal vide his order dated March 27, 1991.

3. Shri Surte, the learned counsel for the petitioners, submitted that pendency of an application for a reference under section 61 of the Bombay Sales Tax Act is continuation of the proceedings notwithstanding dismissal of second appeal and therefore, the Tribunal has not become functus officio and shall have the same jurisdiction which it enjoyed while deciding the second appeal. In support of his contention Shri Surte mainly relied on the judgment of the Supreme Court in the case of Commissioner of Income-tax v. Bansi Dhar and Sons [1986] 157 ITR 665; AIR 1986 SC 421 and contended that though this judgment of the Supreme Court has considered the provisions of section 265 of the Income-tax, the provisions of section 61(6) of the Bombay Sales Tax Act are to the same effect and therefore, the ratio of the judgment of the Supreme Court in Bansi Dhar's case [1986] 157 ITR 665; AIR 1986 SC 421 can be applied to the instant case also.

4. It is necessary to compare the provisions of section 265 of the Income-tax-Act with section 61(6) of the Bombay Sales Tax Act. Section 265 of the Income-tax Act reads as under :

"Section 265. Tax to be paid notwithstanding reference, etc. - Notwithstanding that a reference has been made to the High Court or the Supreme Court or an appeal has been preferred to the Supreme Court tax shall be payable in accordance with the assessment made in the case."

Section 61(6) of the Bombay Sales Tax Act reads as under :

"Section 61(6). The payment of the amount of the tax, if any, due in accordance with the order of the Tribunal in respect of which an application has been made under sub-section (1) shall not be stayed pending the disposal of such application or any reference made in consequence thereof; but if such amount is reduced as the result of such reference, the excess tax paid shall be refunded in accordance with the provisions of section 43."

5. It appears, form perusal of above sections, that section 265 provides that the liability to pay the tax in accordance with the assessment would continue despite a reference to the High Court or to the Supreme Court. There is no specific prohibition to grant stay for the payment of the assessed amount in the provision. However, section 61(6) takes away power of the Tribunal to grant stay although application under section 61(1) of the Bombay Sales Tax Act is made and pending.

6. In Bansi Dhar's case [1986] 157 ITR 665; AIR 1986 SC 421 the main question before the Supreme Court was whether the High Court in exercise of its jurisdiction under section 151 of the Code of Civil Procedure has a power to stay the realisation of tax pending a reference before it. The honourable Judges of the Supreme Cou