The Tribunal has the implied or incidental power, implicit in the exercise of the appellate jurisdiction conferred on it, to grant a stay of giving effect to the remand order, if the facts and circumstances of the case so warrant.

Headnote:
SALES TAX - STAY OF PROCEEDINGS - POWER OF TRIBUNAL - INHERENT POWER - APPELLATE JURISDICTION - IMPLIED OR INCIDENTAL POWER - STAY OF GIVING EFFECT TO REMAND ORDER - MAINTAINABILITY - TAMIL NADU GENERAL SALES TAX ACT, 1959 (TAMIL NADU ACT 1 OF 1959), SECTION 36(5).
Fact of the Case:

The petitioner, Lipton India Ltd., filed six appeals before the Tamil Nadu Sales Tax Appellate Tribunal (TST) challenging the denial of exemption on stock transfers from its Coimbatore branch to its clearing and forwarding agent in Palghat, Kerala. The TST dismissed the stay applications filed by the petitioner, holding that it had no power to grant the relief of stay to give effect to the remand order passed by the Assistant Commissioner.
Finding of the Court:

The court held that the TST had the implied or incidental power, implicit in the exercise of the appellate jurisdiction conferred on it, to grant a stay of giving effect to the remand order, if the facts and circumstances of the case so warranted. The court found that the TST had misdirected itself in the application of law to the facts and circumstances of the case, resulting in the dismissal of the stay applications on the ground that it had no power to grant the relief of stay.
Issues: 1. Whether the TST had the power to grant a stay of giving effect to the remand order passed by the Assistant Commissioner? 2. Whether the TST had misdirected itself in the application of law to the facts and circumstances of the case?
Ratio Decidendi: The court relied on the following principles in reaching its decision: * Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. * This implied power is incidental and ancillary to the exercise of the appellate jurisdiction. * If, however, the statute confers express power on any authority to deal with a particular contingency, then by necessary implication that particular power is to be taken as excluded from the ambit of implied power.
Final Decision: The court quashed the composite order of the TST and directed it to dispose of the stay applications afresh, in the light of the exercise of its appellate jurisdiction. The court also directed that the assessing officer be allowed to proceed with the assessments, till up to the stage of passing of final orders thereon, and await the outcome of the Tribunal in the second appeals.

Judgment :-

JANARTHANAM, J.

Lipton India Ltd. (petitioner), it is said, is registered under the Companies Act, 1956, having its registered office at No. 1, Transport Depot Road, Calcutta-700 088. It is having branches all over India, one of which is located at No. 150, Luz Church Road, Madras-600 004. It is, inter alia, engaged in the manufacture of animal feed at its factory in Singanallur, Coimbatore.

2. Assessments for the years 1984-85 to 1986-87 under the Central Sales Tax Act, 1956 (Act 74 of 1956) (for short "the CST Act"), it is said, had been completed by the Assistant Commissioner (CT), Central Assessment Circle I, Madras-600 006 (first respondent) allowing exemption on the alleged claim of stock transfers from Coimbatore branch to its clearing and forwarding agent at Palghat in Kerala. However, it appears, for the assessment years 1987-88 to 1989-90, similar exemption had been claimed by the petitioner.

3. The petitioner's place of business at Coimbatore was stated to have been inspected by the officers of the Assessment Wing on April 8, 1989. On verification of the records, it was found that movements from Coimbatore to Palghat were as a result of specific orders from the buyers; that the goods were, though purported to have been consigned to the Palghat branch, actually delivered to the ultimate buyers by the same lorry, which proceeded from Coimbatore : that the "pro forma invoice" prepared by the Coimbatore office for the stock transfers exactly tallied with the sales invoices raised by the Palghat branch on the ultimate buyers and therefore the "stock transfer" was not real and that the direct inter-State sales from the Coimbatore branch to the ultimate buyers in Kerala were sought to be projected as stock transfers to Palghat branch.

4. Consequently, the first respondent-assessing officer reopened the assessments for the years 1984-85 to 1986-87 revoking the exemption already granted on such stock transfers and for the years 1987-88 to 1989-90 disallowed the exemption claimed therefor.

5. Aggrieved by the denial of such exemptions, the petitioner, it is said, filed six appeals, namely, A.P. Nos. 6 to 8, 45 and 52 of 1991 and 5 of 1992 before the Deputy Commissioner (CT), Madras (North), Madras-600 006 (second respondent), who, however, on consideration of the materials available on record, by his composite order dated March 31, 1993, thought fit to set aside the assessment orders and remitted the matters back to the first respondent-assessing officer for consideration afresh, of course, with certain directions and observations.

6. The aggrieved petitioner filed appeals in T.A. Nos. 907 to 912 of 1993 before the Tamil Nadu Sales Tax Appellate Tribunal (Main Bench), Madras-600 104 (third respondent). Along with the said appeals, applications in T.P. Nos. 196 to 201 of 1993 for stay of all further proceedings had been filed under section36(5) of the Tamil Nadu General Sales Tax Act, 1959 (Tamil Nadu Act 1 of 1959) (for short "the TNGST Act").

7. However, on the question of maintainability, the petitioner appeared to have invoked the inherent power of the Tribunal for grant of stay of giving effect to the composite order of remand, by virtue of the decisions in Burhanpur Tapti Mill Ltd. v. Board of Revenue, State of Orissa v. Member, Sales Tax Tribunal (Orissa), Income-tax Officer v. M. K. Mohammad Kunhi, Puran Mal Kauntia v. Income-tax Officer, Income-tax Officer v. Khalid Mehdi Khan and Commission of Income-tax v. Bansi Dhar & Sons.

8. The third respondent-Tribunal, in the process of consideration of the stay applications, focussed the point for determination in paragraph 6 of the composite order dated October 28, 1993, thus :

"The only point to be determined is whether the petitioners/appellants are entitled to, for the order of stay of all further proceedings by the Assistant Commissioner (CT), Central Assessment Circle-I, under section36(5) of the Tamil Nadu General Sales Tax Act, 1959."*

To the question so posed, th

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Judicial Analysis