The High Court has no jurisdiction to grant stay of recovery of tax pending the disposal of a reference under section 45 (1) or 45 (2) of the Delhi Sales Tax Act, 1975.

( 1 ) THE question that arises for our consideration in this full bench reference does not seem to have been considered by any court. Perhaps the reason is so it seems to us that the answer is very obvious. "the question referred to us is "whether in a reference which is pending or where an application has been filed under section 256 (2) of the Income Tax Act or section 45 (2) of the Delhi Sales Tax Act the High Court has jurisdiction to grant stay of recovery of tax ?" The question is one of law for the court, and is not an issue of fact.

( 2 ) IN a sales tax case the Appellate Tribunal Sales Tax referred one question for the opinion of this court under section 45 (1) of the Delhi Sales Tax Act, 1975 (the Act ). Other questions which the dealer wanted it to refer for the opinion of this court were refused by the Tribunal. The dealer therefore has made an application under section 45 (2) for an order to the Tribunal to state those questions for opinion which it has refused to refer. When these matters were before the court the dealer made an application for stay of the recovery of Rs. 1,39,698 which the sales tax officer had raised as a demand against the dealer and which was affirmed both by the Additional Commissioner and the Tribunal in appeal.

( 3 ) WE are concerned only with the question of stay in this reference. Has this court power to stay recovery of tax and penalty ? This is the question. At this stage it would be convenient to set out section 45 of the Act:

"45 (1) Within sixty days from the date of an order passed by the Appellate Tribunal under sub-section (6) of section 43, the dealer or the Commissioner may, by application in writing, and accompanied, where the application is made by a dealer, by a fee of fifty rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order, and, subject to the other provisions contained in this section, the Appellate Tribunal, shall within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court : Provided that the Appellate Tribunal may, if it is satisfied that the dealer or the Commissioner was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period not exceeding thirty days. (2) If the Appellate Tribunal refuses to state the case which it has been required to do, on the ground that no question of law arises, the dealer or the Commissioner, as the case may be, may within thirty days of the communication of such refusal either withdraw his application (and if he does so, any fee paid shall be refunded), or apply to the High Court against such refusal. (3) If upon receipt of an application under sub-section (2), the High Court is not satisfied as to the correctness of the decision of the Appellate Tribunal, it may require the Appellate Tribunal to state the case and refer it and on receipt of such requisition, the Appellate Tribunal shall state the case and refer it accordingly. (4) If the High Court is not satisfied that the statements in a case referred to it are sufficient to enable it to determine the questions raised thereby, the Court may refer the case back to the Appellate Tribunal for the purpose of making such additions thereto or alterations therein as it may direct in that behalf. (5) The High Court upon the hearing of any such case shall decide the question of law raised thereby, and shall deliver its judgment thereon containing the grounds on which such decision is founded, and shall send to the Appellate Tribu- nal a copy of such judgment under the seal of the Court and the signature of the Registrar, and the Appellate Tribu- nal shall dispose of the case accordingly. (6) Where a reference is made to the High Court under this section, the costs which shall not include the fee referred to in sub-section (1) shall be in the discre