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Judgment
Syed Shah Mohammed Quadri, J.—The short question that arises for consideration in this C.R.P. is : Whether the Sales Tax Appellate Tribunal, Hyderabad, has power to grant stay of further proceedings pursuant to the order of remand, under appeal, passed by the Appellate Deputy Commissioner.
In the appeal filed by the respondent-assessee before the Sales Tax Appellate Tribunal (S.T.A.T.) T.A. No. 117 of 1994, it moved an application T.M.P. No. 54/94 praying the S.T.A.T. to stay all further proceedings pursuant to the order of remand passed by the Appellate Deputy Commissioner. On March 3, 1994 the S.T.A.T. allowed the petition and granted stay of further proceedings pending disposal of the appeal. It is the correctness of this order that is assailed in the revision.
Mr. Ramaiah, the learned Government Pleader, has contended that by virtue of provisions of sub-section (6-A) of section 21 of the Andhra Pradesh General Sales Tax Act (6 of 1957) (the Act), the Tribunal is denuded of power to grant stay of proceedings and therefore the order under revision is without jurisdiction.
Since the learned counsel had relied upon section 21(6-A) of the Act, it would be apt to read that provision here :
"The payment of tax and penalty, if any, due in accordance with the order of the first appellate authority or of the Deputy Commissioner suo motu under sub-section (4-C) of section 14 or in revision u/s 20, in respect of which an appeal has been preferred under sub-section (1), shall not be stayed pending disposal of the appeal."
From a perusal of the sub-section extracted above, it is clear that the embargo contained in that sub-section is with regard to the grant of stay of payment of tax and/or penalty due in accordance with the order of the first appellate authority or of the Deputy Commissioner, suo motu under sub-section (4-C) of section 14 or in revision u/s 20 of the Act. The prohibition contained in the sub-section does not take in its fold the power of the Appellate Tribunal to pass interlocutory orders in the interest of justice, pending disposal of appeal before it including the power to grant stay of further proceeding, pursuant to the order of remand, under which the assessing authority has to take further proceedings. To hold otherwise we have to read in sub-section (6-A) "and the Tribunal has no power to pass any other interim order" which is impermissible. Further, where a prohibition is contained in any provision of the statute, the maxim "expressum facit less are tacitum" (where there is express mention of certain things, then any thing not mentioned is excluded), applies. Consequently we have no hesitation in holding that the prohibition contained in sub-section (6-A) with regard to granting stay of payment of tax and penalty does not render the order under revision illegal and incompetent.
Learned counsel however relied upon a judgment of a Division Bench of this Court in State of Andhra Pradesh v. Hindustan Shipyard Limited [1988] 68 STC 220: (1987) 5 APSTJ 1. In that case the question before that Division Bench was : Whether the Tribunal was deprived of power to grant stay in respect of appeals preferred before substituting of sub-sections (6) and (6-A) of section 21 of the Act with effect from July 1, 1985. Dealing with that question the Bench, after analysing the said two sub-sections, noted two propositions. The propositions read as follows :
Where an appeal is preferred to the Appellate Tribunal against an appellate order, no stay shall be granted pending such appeal before the Appellate Tribunal.
Where, however, the appeal preferred to the Appellate Tribunal is a first appeal, i.e., where the appeal is preferred against an order of the Deputy Commissioner passed u/s 14(4-C) or under sub-section 20(2), stay can be granted, not by the Tribunal but by the Joint Commissioner to whom an application must be made by the dealer in that behalf.
The learned Government Pleader relied on the expression "no stay shall be granted pending such appeal before the Appellate Tribunal", in the first proposition and submitted that there was no power in the Appellate Tribunal to pass the impugned interim order of stay. We must observe that the said expression "no stay shall be granted pending such appeal before the Appellate Tribunal" in the said judgment has to be understood in the context in which it is used, viz., the power to grant stay of recovery of tax or penalty due in accordance with the order of the first appellate authority or of the Deputy Commissioner suo motu under sub-section (4-C) of section 14 or in revision u/s 20 of the Act before substitution of sub-sections (6) and (6-A) in section 21 of the Act. It cannot be taken out of context and given a meaning which would run counter to the express provisions of sub-section (6-A). In this view, we hold that sub-section (6-A) of section 21 of the Act does not bar the Appellate Tribunal from granting stay of further proceedings consequent upon order of remand where the proceedings do not relate to recovery of tax or penalty.
From the above discussion it follows that there is no illegality in the order under revision nor does it suffer from any error of jurisdiction.
It is needless to point out that the stay granted by the S.T.A.T. operates only to such further proceedings as will have to be taken pursuant to that part of the order allowing the appeal and remanding the case for further enquiry but not with regard to any proceedings which will be taken pursuant to that part of the appellate order dismissing the appeal in part.
In the result the revision is liable to be dismissed and it is accordingly dismissed. No costs.
The Appellate Tribunal is directed to dispose of the appeal as expeditiously as possible, preferably within a period of four weeks from the date of receipt of this order.
Petition dismissed.