An appellate authority has the implicit power to grant stay orders during appeals, essential for the effective exercise of its jurisdiction.

ORDER :

1. With the consent of the parties, the matter is heard finally.

2. A short issue, purely of law, arises for consideration in this petition.

3. Quintessential facts, necessary for determination of the controversy involved in the writ petition, are that the petitioner is a company incorporated under the Companies Act and is engaged in manufacturing of cement. In the matter of consumption of electricity, the petitioner is liable for payment of electricity duty under Rajasthan Electricity (Duty) Act, 1962. According to petitioner, it was subjected to assessment with regard to its liability for payment towards electricity duty and earlier it was assessed also in the year 2019 but, later on, on certain instructions issued by the Commissioner, it was subjected to fresh reassessment which culminated in order dated 11.08.2023 and a separate demand notice dated 14.03.2024.

4. Aggrieved by the said order, the petitioner preferred statutory appeal available under the provisions of Rule 11 of the Rajasthan Electricity (Duty) Rules 1970 (for short, 'the Rules of 1970'). The petitioner also submitted an application for stay of recovery. That application, however came to be rejected vide order dated 06.12.2023, which is impugned in this petition.

5. Pointed submission of learned counsel for the petitioner is that the Appellate Authority has failed to exercise jurisdiction vested in it by law by assuming and proceeding on erroneous presumption that it does not have power to grant stay, though it has authority to decide the appeal. Relying upon plethora of decisions in the cases of (1) ITO, Cannanore vs. M.K. Mohammed Kunhi (1969) 71 ITR 815, (2) M/s Om Kothari Family Trust and Others vs. JDA (1969) 1 WLC 25, (3) Maheshwari Agro Industries vs. Union of India reported in (2012) 2 RLW 1912, (4) Dr. Sushil Kumar vs. Union of India (2015) 1 WLC 309, (5) APR Jewellers Private Limited vs. The Commissioner of Income Tax (Appeals), Hyderabad-I and Ors. (2022) 446 ITR 275, (6) Manohar Singh vs. Union of India (2015) 2 RLW 1322 Raj., (7) DCIT vs. Pepsi Foods Ltd. (2021) 7 SCC 413 and (8) M.P. Cement Manufacturers' Assn. vs. State of MP (2004) 2 SCC 249, learned counsel for the petitioner would submit that the Appellate Authority completely unmindful of its authority under law to consider and pass orders on the prayer for stay, has rejected the application as not maintainable.

6. Learned AAG, at the outset, raised an objection that if the petitioner was aggrieved by the order passed by the Appellate Authority, he had a remedy of preferring review, as provided under Rule 11A of the Rules of 1970, therefore, the ground which has been raised in this petition could not have been raised before the Revisional Authority. As the petitioner has an alternative efficacious remedy, this petition is not maintainable.

7. Ordinarily, we would not have interfered with the order passed by the Appellate Authority rejecting the stay application, had there been consideration of the merits of the application. In that case, certainly we would have relegated the petitioner to avail the remedy of revision, as provided under Rule 11A of the Rules of 1970.

8. Present case however is of exceptional nature for the reason that the Appellate Authority, on an erroneous assumption of law, has failed to exercise jurisdiction vested in it by law which is jurisdictional defect and not mere error of fact or law. A perusal of the order shows that the Appellate Authority was of the view that it does not have power to stay, therefore, that was the main reason for rejecting the application for stay without due consideration of the case as to whether a case was made out or not.

9. In our considered opinion, the view taken by the Appellate Authority is completely erroneous and unsustainable in law. It is well settled principle that statutory authority/Appellate Authority having power to decide a matter has implicit jurisdiction and authority to pass such orders which are incidental in nature incl