Civil Appeal No.7358 of 2019 @ SLP(C) No.27072 of 2016 M/s Tecnimont Pvt. Ltd. (Formerly known as Tecnimont ICB Pvt. Ltd.) vs. The State of Punjab and Others and with other connected matters

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Reportable  IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7358 OF 2019 (Arising out of Special Leave Petition (Civil)No.27072 of 2016)

M/s Tecnimont Pvt. Ltd.  …Appellant (Formerly known as Tecnimont ICB Private Limited)

Versus

State of Punjab & Others …Respondents WITH

CIVIL APPEAL NO.7359 OF 2019 SLP(C) No.8491/2016  

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CIVIL APPEAL NO.7379 OF 2019 SLP(C) No.2151/2017

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CIVIL APPEAL NO.7378 OF 2019 SLP(C) No.967/2017

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CIVIL APPEAL NO.7382 OF 2019 SLP(C) No.4405/2017

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CIVIL APPEAL NO.7361 OF 2019 SLP(C) No.29203/2016

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CIVIL APPEAL NO.7363 OF 2019 SLP(C) No.36306/2016

Civil Appeal No.7358 of 2019 @ SLP(C) No.27072 of 2016 M/s Tecnimont Pvt. Ltd. (Formerly known as Tecnimont ICB Pvt. Ltd.) vs. The State of Punjab and Others and with other connected matters

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CIVIL APPEAL NO.7377 OF 2019 SLP(C) No. 1743/2017

CIVIL APPEAL NO.7364 OF 2019 SLP(C) No. 36302/2016

CIVIL APPEAL NO.7365 OF 2019 SLP(C) No. 36294/2016

CIVIL APPEAL NO.7366 OF 2019 SLP(C) No. 36297/2016

CIVIL APPEAL NO.7375 OF 2019 SLP(C) No. 1741/2017

CIVIL APPEAL NO.7381 OF 2019 SLP(C) No. 4406/2017

CIVIL APPEAL NO.7374 OF 2019 SLP(C) No. 1740/2017

CIVIL APPEAL NO.7367 OF 2019 SLP(C) No. 36292/2016

CIVIL APPEAL NO.7368 OF 2019 SLP(C) No. 36298/2016

CIVIL APPEAL NO.7380 OF 2019 SLP(C) No. 4383/2017

CIVIL APPEAL NO.7383 OF 2019 SLP(C) No. 6381/2019

J U D G M E N T

Uday Umesh Lalit, J.

1. Special leave to appeal granted.

2. These appeals challenge the judgment and order dated 23.12.2015

passed by the High Court of Punjab and Haryana at Chandigarh in Civil

Writ  Petition  No.26920  of  2013  and  all  connected  matters;  and  raise

questions about the validity of Section 62(5) of the Punjab Value Added

Tax Act, 2005 (hereinafter referred to as “the PVAT Act”).  

Civil Appeal No.7358 of 2019 @ SLP(C) No.27072 of 2016 M/s Tecnimont Pvt. Ltd. (Formerly known as Tecnimont ICB Pvt. Ltd.) vs. The State of Punjab and Others and with other connected matters

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3. The text of Section 62 of the PVAT Act is as under:

“62.  First  Appeal    (1)  An  appeal  against  every original order passed under this Act or the rules made thereunder shall lie, -

(a) if  the  order  is  made  by  a  Excise  and Taxation  Officer  or  by  an  officer-in-charge  of the information collection centre or check post or any other officer below the rank of Deputy Excise  and  Taxation  Commissioner,  to  the Deputy Excise and Taxation Commissioner;  

(b) if the order is made by the Deputy Excise and  Taxation  Commissioner,  to  the Commissioner;  

(c) if the order is made by the Commissioner or  any  officer  exercising  the  powers  of  the Commissioner, to the Tribunal.

(2) An order  passed in  appeal  by a  Deputy Excise and Taxation Commissioner or by the Commissioner or  any  officer  on  whom  the  powers  of  the Commissioner  are  conferred,  shall  be  further appealable to the Tribunal.

(3) Every order of the Tribunal and subject only to such  order,  the  order  of  the  Commissioner  or  any officer exercising the powers of the Commissioner or the  order  of  the  Deputy  Excise  and  Taxation Commissioner or of the designated officer, if it  was not challenged in appeal or revision, shall be final.

(4) No appeal shall be entertained, unless it is filed within  a  period  of  thirty  days  from  the  date  of communication of the order appealed against.

(5) No  appeal  shall  be  entertained,  unless  such appeal  is  accompanied  by  satisfactory  proof  of  the prior minimum payment of twenty-five per cent of the total  amount  of  additional  demand  created,  penalty and interest, if any.

Civil Appeal No.7358 of 2019 @ SLP(C) No.27072 of 2016 M/s Tecnimont Pvt. Ltd. (Formerly known as Tecnimont ICB Pvt. Ltd.) vs. The State of Punjab and Others and with other connected matters

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Explanation:  For  the  purposes  of  this  sub-section “additional  demand”  means  any  tax  imposed  as  a result of any order passed under any of the provisions of this Act or the rules made thereunder or under the Central Sales Tax Act, 1956 (Act 74 of 1956).

(7)    In deciding an appeal, the appellate authority, after affording an opportunity of being heard to the parties, shall make an order –

(a) affirming  or  amending  or  cancelling  the assessment or the order under appeal; or

(b) may pass such order as it deems to be just and proper.

(8)     The appellate authority shall pass a speaking order while deciding an appeal and send copies of the order to the appellant and the officer whose order was a subject matter of appeal.”

4. The questions involved in the matters were framed by the High

Court as under:-

“(a) Whether the State is empowered to enact Section 62(5) of the PVAT Act?

(b)  Whether  the  condition  of  25%  pre-deposit  for hearing  first  appeal  is  onerous,  harsh,  unreasonable and,  therefore,  violative  of  Article  14  of  the Constitution of India?

(c) Whether the first appellate authority in its right to hear  appeal  has  inherent  powers  to  grant  interim protection against imposition of such a condition for hearing of appeals on merits?”

Civil Appeal No.7358 of 2019 @ SLP(C) No.27072 of 2016 M/s Tecnimont Pvt. Ltd. (Formerly known as Tecnimont ICB Pvt. Ltd.) vs. The State of Punjab and Others and with other connected matters

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5. Since number  of  petitions were filed challenging the validity of

aforesaid Section 62(5), the High Court had considered CWP No.26920 of

2013 as the lead matter and the facts pertaining to said petition were set out

by the High Court in detail in para 2 of its decision as under:-  

“The  petitioner  –  Punjab  State  Power  Corporation Limited  is  a  statutory  body  constituted  under  the Electricity  (Supply)  Act,  1948.   It  is  engaged  in generation,  distribution  and  supply  of  electric energy/electricity power and other allied material to the  consumers  viz.  domestic,  commercial  and industrial  consumers  in the State  of  Punjab and for that purpose, it is governed by the Indian Electricity Act, 1910 and Electricity (Supply) Act, 1948 as well as the Rules and Regulations framed thereunder.  The petitioner  had  been filing  returns  as  prescribed and whatever tax was payable in terms of Section 15 of the  Punjab  Value  Added  Tax,  2005  (in  short,  “the PVAT Act”) was being deposited.  For the year 2007- 08, returns for the period from 1.4.2007 to 31.3.2008 under the PVAT Act alongwith requisite information in prescribed form had been filed with the authority. Thereafter,  annual  statement  in  Form  VAT 20  had been  filed  before  the  last  date  as  prescribed  under section 26 of  the  PVAT Act  and Rule  40(1)  of  the Punjab Value Added Tax Rules, 2005 (in short, “the Rules”).  Similarly, for the years 2008-09 and 2009- 10, returns were filed in time and annual statements in Form VAT 20 were  also filed before the last  dates. The  Excise  and  Taxation  Officer  cum  Designated Officer (ETO) – respondent No.2 initiated assessment proceedings for the years 2007-08, 2008-09 and 2009- 10 by issuing notice  under section 29 of  the PVAT Act.  The representatives of the petitioner attended the proceedings and tendered explanation.  Assessments had  been  framed  under  the  PVAT Act  vide  orders dated 19.9.2011,  31.10.2012 and 31.11.2012 for the assessment  years  2007-08,  2008-09  and  2009-10, Annexures  P.1,  P.1/A and  P.1/B  respectively.   The

Civil Appeal No.7358 of 2019 @ SLP(C) No.27072 of 2016 M/s Tecnimont Pvt. Ltd. (Formerly known as Tecnimont ICB Pvt. Ltd.) vs. The State of Punjab and Others and with other connected matters

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officer  made  following  additions  to  the  taxable turnover declared in the returns:-

i) the receipts in respect of charges from the customers as meter rent had been brought to tax;

ii) the receipts in respect of charges from the customers as service line rental had been bought to tax while treating these as meter rent.

In  addition  to  the  above  tax,  the  ETO  imposed penalties under section 53 and interest under section 32 of the PVAT Act, resulting in raising demand of Rs.26,52,79,716/-,  Rs.27,64,73,245/-  and Rs.22,18,31,454/- respectively for the aforesaid years. The petitioner challenged the order before this court by filing CWP No.21127 of 2011.  Vide order dated 7.11.2012,  Annexure  P.2,  this  Court  relegated  the petitioner  to  the  remedy  of  appeal.   The  petitioner approached  the  appellate  authority  i.e.  the  Deputy Excise  and  Taxation  Commissioner  (Appeals)  by filing appeals under Section 62 of the PVAT Act for all  the  aforesaid  assessment  years.   Alongwith  the appeals,  applications under Section 62 of the PVAT Act for stay of recovery of tax and entertainment of the appeals by dispensing with the requirement of pre- deposits  had  also  been  filed  on  the  ground  that financial position of the petitioner was very tight and there were no liquid assets so as to make payment of demand involved.   Vide  order  dated  13.2.2013,  the appellate  authority  directed  the  petitioner  to  make deposit  of  25%  of  the  additional  demand  in  the government treasury by 27.2.2013 failing which the appeals would be dismissed in limine.  Aggrieved by the  order,  the  petitioner  filed  appeals  before  the Punjab VAT Tribunal (in short, “the Tribunal”).  It was pleaded  by  the  petitioner  that  its  financial  position was very poor and it was not in a condition to make payment  of  25%  and  the  losses  incurred  by  the petitioner  had  been  duly  explained  to  the  appellate authority.   Since  the  petitioner  had  already  paid voluntarily  tax of  Rs.1,97,05,910/-,  Rs.1,88,34,187/- and  Rs.1,94,93,597/-  for  the  assessment  years  in

Civil Appeal No.7358 of 2019 @ SLP(C) No.27072 of 2016 M/s Tecnimont Pvt. Ltd. (Formerly known as Tecnimont ICB Pvt. Ltd.) vs. The State of Punjab and Others and with other connected matters

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question,  the  same  should  be  adjusted  against  the additional demand created by the assessing authority. The Tribunal  agreed with  the  contentions  raised  by the  petitioner  to  the  extent  that  the  amount  of voluntarily tax was required to be adjusted against the additional demand created by the assessing authority. However, the Tribunal while disposing of the appeals had  observed  that  the  petitioner  was  required  to deposit 25% of the amount of tax, penalty and interest in  terms  of  the  order  in  the  case  of  Ahulwalia Contracts India Pvt. Limited.  Aggrieved by the order, the petitioner filed CWP Nos.17370 of 2013, 17031 and 17053 of 2013 which were disposed of vide order dated 31.10.2013, Annexure P.8.  The petitioner was allowed to withdraw the writ petition so as to enable it to challenge the vires of Section 62(5) of the PVAT Act alongwith challenge to the orders passed by the Tribunal.   Hence  the  instant  writ  petitions  by  the petitioner(s).”

6. After  framing  the  questions  as  aforesaid,  the  High  Court

considered the relevant decisions of this Court as well as some of the High

Courts and observed as under:-

“It  is,  thus,  concluded  that  the  State  is empowered to enact Section 62(5) of the Act and the said provision is  legal and valid.   The condition of 25%  pre-deposit  for  hearing  first  appeal  is  not onerous,  harsh,  unreasonable  and  violative  of  the provisions of Article 14 of the Constitution of India.”  

While  considering question  (c),  the  High Court  principally  relied

upon  the  decision  of  this  Court  in  Income  Tax  Officer  v. M.  K.

Civil Appeal No.7358 of 2019 @ SLP(C) No.27072 of 2016 M/s Tecnimont Pvt. Ltd. (Formerly known as Tecnimont ICB Pvt. Ltd.) vs. The State of Punjab and Others and with other connected matters

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Mohammed Kunhi1 and various judgments of the High Courts which had

followed said decision.  The relevant passages from the decision in Kunhi1

are:-

“The argument advanced on behalf of the Appellant before us that in the absence of any express provisions in Sections 254 and 255 of the Act relating to stay of recovery during the pendency of an appeal it must be held  that  no  such  power  can  be  exercised  by  the Tribunal,  suffers  from  a  fundamental  infirmity inasmuch as it assumes and proceeds on the premise that the statute confers such a power on the Income tax Officer who can give the necessary relief  to an Assessee.  The right  of  appeal  is  a  substantive  right and the questions of fact and law are at large and are open to review by the appellate tribunal. Indeed the tribunal  has  been  given  very  wide  powers  under Section 254(1) for it may pass such orders as it thinks fit after giving full hearing to both the parties to the appeal.  If  the Income tax Officer  and the Appellate Assistant  Commissioner  have  made  assessments  or imposed penalties raising very large demands and if the  Appellate  Tribunal  is  entirely  helpless  in  the matter of stay or recovery the entire purpose of the appeal can be defeated if ultimately the orders of the departmental authorities are set aside. It is difficult to conceive  that  the  legislature  should  have  left  the entire matter to the administrative authorities to make such  orders  as  they  choose  to  pass  in  exercise  of unfettered  discretion.  The  Assessee,  as  has  been pointed  out  before,  has  no  right  to  even  move  an application  when  an  appeal  is  pending  before  the appellate tribunal under Section 220(6) and it is only at  the  earlier  stage  of  appeal  before  the  Appellate Assistant Commissioner that the statute provides for such  a  matter  being  dealt  with  by  the  Income  tax Officer. It is a firmly established rule that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to  make  such  grant  effective  (Sutherland  Statutory

1(1969) 2 SCR 65

Civil Appeal No.7358 of 2019 @ SLP(C) No.27072 of 2016 M/s Tecnimont Pvt. Ltd. (Formerly known as Tecnimont ICB Pvt. Ltd.) vs. The State of Punjab and Others and with other connected matters

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Construction, Third Edition, Articles 5401 and 5402). The  powers  which  have  been conferred  by  Section 254 on the  Appellate  Tribunal  with widest  possible amplitude  must  carry  with  them  by  necessary implication  all  powers  and  duties  incidental  and necessary to make the exercise of those powers fully effective…….

…      …    …

….. In  our  opinion  the  Appellate  Tribunal  must  be held to have the power to grant stay as incidental or ancillary  to  its  appellate  jurisdiction.  This  is particularly so when Section 220(6)  deals  expressly with a situation when an appeal is pending before the Appellate  Assistant  Commissioner,  but  the  Act  is silent in that behalf when an appeal is pending before the Appellate Tribunal. It could well be said that when Section 254 confers appellate jurisdiction, it impliedly grants the power of doing all such acts, or employing such  means,  as  are  essentially  necessary  to  its execution and that the statutory power carries with it the  duty  in  proper  cases  to  make  such  orders  for staying  proceedings  as  will  prevent  the  appeal  if successful from being rendered nugatory.”

The  High  Court  also  referred  to  the  decision  of  this  Court  in

Commissioner of Income Tax v. Bansi Dhar & Sons and Others2.  Finally

the High Court concluded :-

“It is, thus, concluded that even when no express power  has  been  conferred  on  the  first  appellate authority  to  pass  an  order  of  interim injunction/protection,  in  our  opinion,  by  necessary implication  and  intendment  in  view  of  various pronouncements  and  legal  proposition  expounded above  and  in  the  interest  of  justice,  it  would essentially  be  held  that  the  power  to  grant  interim

2 (1986) 157 ITR 665 (SC) = (1986) 1 SCC 523

Civil Appeal No.7358 of 2019 @ SLP(C) No.27072 of 2016 M/s Tecnimont Pvt. Ltd. (Formerly known as Tecnimont ICB Pvt. Ltd.) vs. The State of Punjab and Others and with other connected matters

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injunction/protection is embedded in Section 62(5) of the PVAT Act.  Instead of rushing to the High Court under  Article  226  of  the  Constitution  of  India,  the grievance  can  be  remedied  at  the  stage  of  first appellate authority.  As a sequel, it would follow that the provisions of Section 62(5) of the PVAT Act are directory  in  nature  meaning  thereby  that  the  first appellate  authority  is  empowered  to  partially  or completely  waive  the  condition  of  pre-deposit contained  therein  in  the  given  facts  and circumstances.  It is not to be exercised in a routine way or as a matter of course in view of the special nature  of taxation and revenue laws.   Only when a strong  prima  facie  case  is  made  out  will  the  first appellate authority consider whether to grant interim protection/injunction  or  not.   Partial  or  complete waiver  will  be  granted  only  in  deserving  and appropriate cases where the first appellate authority is satisfied that the entire purpose of the appeal will be frustrated  or  rendered  nugatory  by  allowing  the condition  of  pre-deposit  to  continue  as  a  condition precedent  to  the  hearing  of  the  appeal  before  it. Therefore,  the  power  to  grant  interim protection/injunction by the first appellate authority in appropriate cases in case of undue hardship is legal and valid.  As a result, question (c) posed is answered accordingly.”

7. The appellant in appeal arising out of SLP(C) No.27072 of 2016,

though not party to the original proceedings, was granted permission to

challenge the instant decision of the High Court.  The appellant as well as

those who are similarly placed are aggrieved by the decision of the High

court  as regards first  two questions while challenge has been raised on

behalf  of  the  State3 to  the  conclusion of  the  High Court  in  relation  to

3 In appeals arising out of SLP(C)Nos. 1742, 1743 and 4383 of 2017

Civil Appeal No.7358 of 2019 @ SLP(C) No.27072 of 2016 M/s Tecnimont Pvt. Ltd. (Formerly known as Tecnimont ICB Pvt. Ltd.) vs. The State of Punjab and Others and with other connected matters

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question (c).   All  these  matters  were listed along with petitions raising

challenge with regard to the validity of Section 48(4) of the Chhattisgarh

Value Added Tax Act, 2005. The matters from Chhattisgarh were disposed

of by this Court by order dated 16.04.2019 passed in Writ Petition (Civil)

No.212 of 2014 and connected matters.  The provisions of the PVAT Act

being  somewhat  different,  the  matters  from  the  State  of  Punjab  were

directed  to  be dealt  with separately.   We heard learned counsel  for  the

parties

8. In  The Anant Mills Co. Ltd.  v. State of Gujarat and Others4, a

Bench of four Judges of this Court considered inter alia, challenge to the

validity of Section 406 of the Bombay Provincial Municipal Corporations

Act, 1949 as amended by Gujarat Act No.5 of 1970.  As per the relevant

provision, no appeal against the ratable value or tax would be entertained

unless the amount claimed was deposited with the Commissioner.   The

proviso  to  said  Section  however  empowered the  Judge  considering  the

appeal  to  relieve  the  appellant  from the  rigour  of  pre-deposit  if  in  the

opinion of the Judge it would cause undue hardship to the appellant.  The

discussion in that behalf was as under:-

4 (1975) 2 SCC 175

Civil Appeal No.7358 of 2019 @ SLP(C) No.27072 of 2016 M/s Tecnimont Pvt. Ltd. (Formerly known as Tecnimont ICB Pvt. Ltd.) vs. The State of Punjab and Others and with other connected matters

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“40. After hearing the learned counsel for the parties, we are unable to subscribe to the view taken by the High Court. Section 406(2)(e) as amended states that no  appeal  against  a  rateable  value  or  tax  fixed  or charged  under  the  Act  shall  be  entertained  by  the Judge in the case of an appeal against a tax or in the case of an appeal made against a rateable value after a bill for any property tax assessed upon such value has been  presented  to  the  appellant,  unless  the  amount claimed from the appellant has been deposited by him with the Commissioner. According to the proviso to the  above  clause,  where  in  any  particular  case  the Judge is of opinion that the deposit of the amount by the appellant will  cause undue hardship to him, the Judge  may  in  his  discretion  dispense  with  such deposit  or  part  thereof,  either  unconditionally  or subject to such conditions as he may deem fit.  The object of the above provision apparently is to ensure the deposit of the amount claimed from an appellant in  case  he  seeks  to  file  an  appeal  against  a  tax  or against a rateable value after a bill for any property tax assessed upon such value has been presented to him. Power at the same time is given to the appellate Judge to relieve the appellant from the rigour of the above provision in case the Judge is of the opinion that it would cause undue hardship to the appellant. The  requirement  about  the  deposit  of  the  amount claimed as a condition precedent to the entertainment of an appeal which seeks to challenge the imposition or the quantum of that tax, in our opinion, has not the effect  of  nullifying  the  right  of  appeal,  especially when  we  keep  in  view  the  fact  that  discretion  is vested  in  the  appellate  Judge  to  dispense  with  the compliance  of  the  above  requirement.  All  that  the statutory  provision  seeks  to  do  is  to  regulate  the exercise  of  the  right  of  appeal.  The  object  of  the above  provision  is  to  keep  in  balance  the  right  of appeal,  which  is  conferred  upon  a  person  who  is aggrieved with the demand of tax made from him, and the right of the Corporation to speedy recovery of the tax.  The  impugned  provision  accordingly  confers  a right  of  appeal  and  at  the  same  time  prevents  the delay in the  payment  of the  tax.  We find ourselves

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unable to accede to the argument that the impugned provision has the effect of creating a discrimination as is offensive to the principle of equality enshrined in Article 14 of the Constitution. It is significant that the right of appeal is conferred upon all persons who are aggrieved against the determination of tax or rateable value.  The  bar  created  by  Section  406(2)(e)  to  the entertainment of the appeal by a person who has not deposited the amount of tax due from him and who is not  able  to  show  to  the  appellate  Judge  that  the deposit  of  the  amount  would  cause  him  undue hardship arises out of his own omission and default. The above provision, in our opinion, has not the effect of  making  invidious  distinction  or  creating  two classes  with  the  object  of  meting  out  differential treatment to them; it only spells out the consequences flowing from the  omission  and default  of  a  person who despite the fact  that  the deposit  of the amount found due from him would cause him no hardship, declines of his own volition to deposit that amount. The  right  of  appeal  is  the  creature  of  a  statute. Without a statutory provision creating such a right the person aggrieved is not entitled to file an appeal. We fail  to  understand  as  to  why  the  Legislature  while granting the right of appeal cannot impose conditions for the exercise of such right. In the absence of any special  reasons  there  appears  to  be  no  legal  or constitutional  impediment  to  the  imposition of  such conditions. It is permissible, for example, to prescribe a condition in criminal cases that unless a convicted person  is  released  on  bail,  he  must  surrender  to custody  before  his  appeal  against  the  sentence  of imprisonment  would  be  entertained.  Likewise,  it  is permissible  to  enact  a  law  that  no  appeal  shall  lie against  an  order  relating  to  an  assessment  of  tax unless the tax had been paid. Such a provision was on the statute book in Section 30 of the Indian Income Tax Act, 1922. The proviso to that section provided that “. . . no appeal shall lie against an order under sub-section (1) of Section 46 unless the tax had been paid”. Such conditions merely regulate the exercise of the right of appeal so that the same is not abused by a recalcitrant  party  and  there  is  no  difficulty  in  the

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enforcement of the order appealed against in case the appeal  is  ultimately  dismissed.  It  is  open  to  the Legislature to impose an accompanying liability upon a  party  upon  whom  legal  right  is  conferred  or  to prescribe conditions for the exercise of the right. Any requirement for the discharge of that liability or the fulfilment  of  that  condition  in  case  the  party concerned seeks to avail of the said right is a valid piece  of  legislation,  and  we  can  discern  no contravention  of  Article  14  in  it.  A  disability  or disadvantage arising out of a party’s own default or omission  cannot  be  taken  to  be  tantamount  to  the creation of two classes offensive to Article 14 of the Constitution,  especially  when  that  disability  or disadvantage operates upon all persons who make the default or omission.”

9. In Seth Nand Lal and Another vs. State of Haryana and Others5,

the Constitution Bench of this Court was called upon to consider whether

the condition of pre-deposit for exercise of right of appeal was valid or

not.   A submission  was  raised  that  unlike  the  provision  which  was

considered in The Anant Mills Co. Ltd.4, the Appellate Authority was not

empowered to relieve the appellant of the requirement of pre-deposit.  The

submission was considered thus:-

“22. It  is  well  settled  by  several  decisions  of  this Court that the right of appeal is a creature of a statute and  there  is  no  reason  why  the  legislature  while granting  the  right  cannot  impose  conditions  for  the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory (vide :  the latest decision  in  Anant  Mills  Ltd. v.  State  of  Gujarat4). Counsel  for  the  appellants,  however,  urged that  the conditions  imposed  should  be  regarded  as

5 1980 (Supp) SCC 574

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unreasonably onerous especially when no discretion has been left with the appellate or revisional authority to relax or waive the condition or grant exemption in respect thereof in fit and proper cases and, therefore, the  fetter  imposed  must  be  regarded  as unconstitutional and struck down. It is not possible to accept this contention for more than one reason. In the first  place,  the  object  of  imposing  the  condition  is obviously  to  prevent  frivolous  appeals  and revision that impede the implementation of the ceiling policy; secondly, having regard to sub-sections (8) and (9) it is clear that the cash deposit or bank guarantee is not by way of any exaction but in the nature of securing mesne profits from the person who is ultimately found to be in unlawful possession of the land; thirdly, the deposit  or  the  guarantee  is  correlated  to  the landholdings  tax  (30  times  the  tax)  which,  we  are informed,  varies  in  the  State  of  Haryana  around  a paltry amount of Rs 8 per acre annually; fourthly, the deposit to be made or bank guarantee to be furnished is confined to the landholdings tax payable in respect of the disputed area i.e. the area or part thereof which is declared surplus after leaving the permissible area to the appellant or petitioner. Having regard to those aspects,  particularly  the  meagre  rate  of  the  annual land-tax payable,  the fetter imposed on the right  of appea1/revision,  even in  the  absence of a provision conferring  discretion  on  the  appellate/revisional authority to relax or waive the condition, cannot be regarded as onerous or unreasonable. The challenge to Section 18(7) must, therefore, fail.”

10. The principles laid down in The Anant Mills Co. Ltd.4 and in Seth

Nand Lal5 have  consistently  been followed,  for  instance  in  (i)  Vijay

Prakash D. Mehta and another  vs.  Collector of Customs (Preventive),

Bombay6; (ii)  Shyam Kishore and others  vs.  Municipal Corporation

6 (1988) 4 SCC 402

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of  Delhi  and  another7;  (iii)  Gujarat  Agro  Industries  Co.  Ltd.   vs.

Municipal  Corporation  of  the  City  of  Ahmedabad  and  others8;  (iv)

State of Haryana  vs.  Maruti Udyog Ltd. and others9; (v) Government

of Andhra Pradesh  and others  vs.  P. Laxmi Devi (Smt.)10; (vi)  Har

Devi  Asnani   vs.   State  of  Rajasthan  and  others11;and  (vii)  S.E.

Graphites Private Limited  vs.  State of Telangana and Ors.12.    

11. The  decisions  of  this  Court  can  broadly  be  classified  in  two

categories, going by the width and extent of the concerned provisions:-

a) Under  the  first  category  are  the  cases  where,  the  concerned

statutory provision, while insisting on pre-deposit, itself gives discretion

to the Appellate Authority to grant relief against the requirement of pre-

deposit  if  the  Appellate  Authority  is  satisfied  that  insistence  on  pre-

deposit would cause undue hardship to the appellant.  The decisions in

this category are  The Anant Mills Co. Ltd.4, Vijay Prakash D. Mehta6,

Gujarat Agro Industries8 and Maruti Udyog9  

7 (1993) 1 SCC 22 8 (1999) 4 SCC 468 9 (2000) 7 SCC 348 10 (2008) 4 SCC 720 11 (2011) 14 SCC 160 12 (2019) SCC Online SC 842

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b) On the other hand, the decisions in said  Seth Nand Lal5, Shyam

Kishore7, P. Laxmi Devi10, Har Devi Asnani11  and  S.E. Graphites12 dealt

with cases where the statute did not confer any such discretion on the

Appellate  Authority  and  yet  the  challenge  to  the  validity  of  such

provisions was rejected.

12. The decision of the Constitution Bench of this Court in Seth Nand

Lal5 did consider  whether  the requirement of  pre-deposit  would cause

undue hardship.  However considering that the liability in question and

consequential requirement of pre-deposit was a meagre rate of the annual

land-tax payable, the fetter imposed on the right of appeal/revision, even

in  the  absence  of  a  provision  conferring  the  discretion  on  the

appellant/revisional  authority  to  relax  or  waive  the  condition was  not

found to be onerous or unreasonable.  

13. In  Shyam Kishore7, the provision that came up for consideration

was Section 170(b) of the Delhi Municipal Corporation Act, 1957 under

which the  amount  in  dispute  relating  to  property  tax  is  required  to  be

deposited before the appeal can be entertained.  Said Section 170(b) is as

under:

“S.170  Conditions of right to appeal –  No appeal shall  be  heard  or  determined  under  Section  169 unless-

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(a)   ….. (b) the amount,  if any, in dispute in the appeal has been deposited by the appellant in the office of the Corporation.”   

After considering relevant decisions on the point,  a modality was

suggested  under  which  some  relief  could  be  granted  to  the  concerned

appellant but finally a Bench of three Judges of this Court suggested that

the solution lay in having the statute itself amended.  The discussion in that

behalf was as under:-

“44.  ………  The  appellate  judge’s  incidental  and ancillary powers should not be curtailed except to the extent  specifically  precluded by the  statute.  We see nothing  wrong  in  interpreting  the  provision  as permitting  the  appellate  authority  to  adjourn  the hearing of the appeal thus giving time to the assessee to pay the tax or even specifically granting time or instalments  to  enable  the  assessee  to  deposit  the disputed tax where the  case merits  it,  so long as it does  not  unduly  interfere  with  the  appellate  court’s calendar  of  hearings.  His  powers,  however,  should stop short of staying the recovery of the tax till  the disposal of the appeal. We say this because it is one thing for the judge to adjourn the hearing leaving it to the assessee to pay up the tax before the adjourned date or permitting the assessee to pay up the tax, if he can,  in  accordance  with  his  directions  before  the appeal is heard. In doing so, he does not and cannot injunct the department from recovering the tax, if they wish  to  do  so.  He  is  only  giving  a  chance  to  the assessee to pay up the tax if he wants the appeal to be heard. It is, however, a totally different thing for the judge  to  stay  the  recovery  till  the  disposal  of  the appeal; that would result in modifying the language of the proviso to read: “no appeal shall be disposed of

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until the tax is paid”. Short of this, however, there is no reason to restrict the powers unduly; all he has to do is to ensure that the entire tax in dispute is paid up by the time the appeal is actually heard on its merits. We would, therefore, read clause (b) of Section 170 only  as  a  bar  to  the  hearing  of  the  appeal  and  its disposal  on  merits  and  not  as  a  bar  to  the entertainment of the appeal itself.

 46. We  only  wish  that  the  statute  itself  is  soon amended to make this position clear. After all, under the  D.M.C.  Act,  the  appellate  authority  is  a  high judicial officer, being the District Judge, and there is no reason why the Legislature should not trust such a high judicial officer to exercise his discretion in such a  way  as  to  safeguard  the  interests  of  both  the Revenue and the assessees. We think that, until this is done, the provision requires a liberal interpretation so as  to  preserve  such  interests  and  should  not  be  so rigidly construed as to warrant the throwing out of an appeal in limine merely because the tax is not paid before the appeal is filed.”

14. In P. Laxmi Devi10,  validity of the proviso to Section 47A of the

Indian  Stamp Act,  1899 was in  issue.   The High Court  had held said

provision to be unconstitutional, which view was reversed by this Court.

The proviso to said Section 47A reads:-

“Provided  that  no  reference  shall  be  made  by  the registering officer unless an amount equal to fifty per cent of the deficit duty arrived at by him is deposited by the party concerned.”

The relevant discussion was as under:-

“18. In our opinion, there is no violation of Articles 14, 19 or any other provision of the Constitution by the enactment  of  Section 47-A as amended by A.P.

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Amendment Act 8 of 1998. This amendment was only for plugging the loopholes and for quick realisation of the stamp duty. Hence it is well within the power of the State Legislature vide Entry 63 of List II read with Entry 44 of List III of the Seventh Schedule to the Constitution.

19.  It  is  well  settled  that  stamp duty  is  a  tax,  and hardship is not relevant in construing taxing statutes which are to be construed strictly. As often said, there is no equity in a tax vide CIT v. V.MR.P. Firm Muar13. If  the  words  used in  a  taxing statute  are  clear,  one cannot try to find out the intention and the object of the  statute.  Hence  the  High  Court  fell  in  error  in trying to go by the supposed object and intendment of the Stamp Act, and by seeking to find out the hardship which  will  be  caused  to  a  party  by  the  impugned amendment of 1998.

20. In  Partington v.  Attorney General14 Lord Cairns observed as under:

“If  the  person  sought  to  be  taxed  comes within the letter of the law he must be taxed, however,  great  the  hardship  may  appear  to the judicial  mind.  On the  other  hand if  the court seeking to recover the tax cannot bring the subject  within the  letter  of  the  law,  the subject  is  free,  however,  apparently  within the spirit of the law the case might otherwise appear to be.”

The  above  observation  has  often  been  quoted  with approval by this Court,  and we endorse it  again. In Bengal  Immunity  Co.  Ltd. v.  State  of  Bihar15 this Court held that if there is hardship in a statute it is for the legislature to amend the law, but the court cannot be  called  upon  to  discard  the  cardinal  rule  of interpretation for mitigating a hardship.

13 AIR 1965 SC 1216 14 (1869) LR 4 HL 100 15 AIR 1955 SC 661

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21. It has been held by a Constitution Bench of this Court  in  ITO v.  T.S.  Devinatha  Nadar16 (vide  AIR paras 23 to 28) that where the language of a taxing provision is plain, the court cannot concern itself with the intention of the legislature. Hence, in our opinion the High Court erred in its approach of trying to find out  the  intention  of  the  legislature  in  enacting  the impugned amendment to the Stamp Act.

22. In this connection we may also mention that just as the reference under Section 47-A has been made subject to deposit of 50% of the deficit duty, similarly there are provisions in various statutes in which the right  to  appeal  has  been  given  subject  to  some conditions.  The  constitutional  validity  of  these provisions has been upheld by this Court in various decisions which are noted below.

23. In Gujarat Agro Industries Co. Ltd. v.  Municipal Corpn. of the City of Ahmedabad8 this Court referred to its  earlier decision in  Vijay Prakash D. Mehta v. Collector of  Customs6 wherein this  Court  observed: (Vijay Prakash case, SCC p. 406, para 9)

“9.  Right  to  appeal  is  neither  an  absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial  and  quasi-judicial  adjudications. The right to appeal is a statutory right and it can  be  circumscribed  by the  conditions  in the grant.”

While dealing with the submission that in terms of said proviso,

no relief could be granted even in cases where the requirement of pre-

deposit may result in great prejudice, this Court went on to observe:-

16 AIR 1968 SC 623

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“28. We may, however, consider a hypothetical case. Supposing the correct  value of  a property is  Rs 10 lakhs and that is the value stated in the sale deed, but the registering officer erroneously determines it to be, say, Rs 2 crores. In that case while making a reference to the Collector under Section 47-A, the registering officer will demand duty on 50% of Rs 2 crores i.e. duty on Rs 1 crore instead of demanding duty on Rs 10  lakhs.  A  party  may  not  be  able  to  pay  this exorbitant  duty  demanded  under  the  proviso  to Section 47-A by the registering officer in such a case. What can be done in this situation?

29. In our opinion in this situation it is always open to a  party  to  file  a  writ  petition  challenging  the exorbitant  demand  made  by  the  registering  officer under the proviso to Section 47-A alleging that  the determination  made  is  arbitrary  and/or  based  on extraneous considerations, and in that case it is always open  to  the  High  Court,  if  it  is  satisfied  that  the allegation  is  correct,  to  set  aside  such  exorbitant demand  under  the  proviso  to  Section  47-A of  the Stamp Act  by  declaring  the  demand  arbitrary.  It  is well settled that arbitrariness violates Article 14 of the Constitution vide Maneka Gandhi v. Union of India17. Hence, the party is not remediless in this situation.”

15. In Har Devi Asnani11 the validity of proviso to Section 65(1) of the

Rajasthan Stamp Act, 1998 came up for consideration in terms of which no

revision application could be entertained unless it was accompanied by a

satisfactory  proof  of  the  payment  of  50%  of  the  recoverable  amount.

Relying on the earlier decisions of this Court including in P. Laxmi Devi10,

17 (1978) 1 SCC 248 = AIR 1978 SC 597

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the challenge was rejected and the thought expressed in  P. Laxmi Devi10

was repeated in Har Devi Asnani11 as under:-

“27.  In  Govt.  of  A.P. v.  P. Laxmi Devi10 this  Court, while  upholding  the  proviso  to  sub-section  (1)  of Section 47-A of the Stamp Act introduced by Andhra Pradesh Amendment Act 8 of 1998, observed: (SCC p. 737, para 29)

“29. In  our  opinion  in  this  situation  it  is always open to a party to file a writ petition challenging the exorbitant demand made by the  registering  officer  under  the  proviso  to Section 47-A alleging that the determination made is arbitrary and/or based on extraneous considerations, and in that case it  is always open to the High Court, if it is satisfied that the  allegation  is  correct,  to  set  aside  such exorbitant  demand  under  the  proviso  to Section 47-A of the Stamp Act by declaring the  demand arbitrary.  It  is  well  settled  that arbitrariness  violates  Article  14  of  the Constitution (vide  Maneka Gandhi v.  Union of India17). Hence, the party is not remediless in this situation.”

28. In our view, therefore, the learned Single Judge should have examined the facts of the present case to find out whether the determination of the value of the property purchased by the appellant and the demand of additional stamp duty made from the appellant by the Additional Collector were exorbitant so as to call for interference under Article 226 of the Constitution.

16.  These decisions show that the following statements of law in  The

Anant Mills Co. Ltd.4 have guided subsequent decisions of this Court:

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“…The  right  of  appeal  is  the  creature  of  a  statute. Without a statutory provision creating such a right the person aggrieved is not entitled to file an appeal.

…It is permissible to enact a law that no appeal shall lie against an order relating to an assessment of tax unless the tax had been paid.

….It  is  open  to  the  Legislature  to  impose  an accompanying liability upon a party upon whom legal right  is  conferred or  to  prescribe conditions  for  the exercise  of  the  right.  Any  requirement  for  the discharge  of  that  liability  or  the  fulfilment  of  that condition in case the party concerned seeks to avail of the said right is a valid piece of legislation.”

17. In the light of these principles, the High Court rightly held Section

62(5) of the PVAT Act to be legal and valid and the condition of 25% of

pre-deposit not to be onerous, harsh, unreasonable and violative of Article

14 of the Constitution of India.  Now we turn to question (c) as framed by

the High Court and consider whether the conclusions drawn by the High

Court while answering said question were correct or not.

18. It  is  true  that  in  cases  falling  in  second  category  as  set  out  in

paragraph 11 hereinabove, where no discretion was conferred by the Statute

upon the Appellate  Authority  to  grant  relief  against  requirement  of  pre-

deposit, the challenge to the validity of the concerned provision in each of

those cases was rejected.  But the decision of the Constitution Bench of this

Court in Seth Nand Lal5 was in the backdrop of what this Court considered

to be meagre rate of the annual land-tax payable.   The decision in Shyam

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Kishore7 attempted to find a solution and provide some succour in cases

involving extreme hardship but was well aware of the limitation.  Same

awareness was expressed in P. Laxmi Devi10 and in Har Devi Asnani11 and

it was stated that in cases of extreme hardship a writ petition could be an

appropriate remedy.  But in the present case the High Court has gone a step

further and found that the Appellate Authority would have implied power to

grant such solace and for arriving at such conclusion reliance is placed on

the decision of this Court in Kunhi1.

19. Kunhi1 undoubtedly laid down that an express grant of statutory

power  carries  with it,  by necessary implication,  the authority  to  use  all

reasonable means to make such grant effective.  But can such incidental or

implied power be drawn and invoked to grant relief against requirement of

pre-deposit  when  the  statute  in  clear  mandate  says  –  no  appeal  be

entertained unless 25% of the amount in question is deposited?  Would not

any  such  exercise  make  the  mandate  of  the  provision  of  pre-deposit

nugatory and meaningless?

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20. While  dealing  with the  scope and width of  implied powers,  the

Constitution Bench of this Court in  Matajog Dubey v. H. C. Bhari18 also

touched upon the issue whether exercise of such power can permit going

against  the  express  statutory  provision  inhibiting  the  exercise  of  such

power.  The discussion was as under:-

“Where a power is conferred or a duty imposed by statute  or  otherwise,  and  there  is  nothing  said expressly inhibiting the exercise of the power or the performance  of  the  duty  by  any  limitations  or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution. If in the exercise of the power or the performance of the official duty, improper or unlawful obstruction or resistance is encountered, there must be the right to use  reasonable  means  to  remove  the  obstruction  or overcome the resistance. This accords with common sense and does not seem contrary to any principle of law. The true position is neatly stated thus in Broom's Legal Maxims, 10th Ed., at page 312 : "It is a rule that when  the  law  commands  a  thing  to  be  done,  it authorises  the  performance  of  whatever  may  be necessary  for  executing  its  command.”  (Emphasis added)

21. The same principle was adverted to in  Shyam Kishore7.  What is

noteworthy is that the decision in  Kunhi1 was also considered and it was

observed :-

18 1955 (2) SCR 925

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“40. We have set  out  the  terms of  Section 170(b) earlier. This has been interpreted by the Corporation to mean that an appeal preferred by an assessee has to be dismissed in limine unless the tax in dispute has been paid and that there is no scope for the appellate authority  exercising  any  powers  of  stay  pending disposal of the appeal.  Prima facie  , the contention of the Corporation that to read a power in the District Judge to grant stay of collection of the disputed tax pending  disposal  of  the  appeal  will  run  counter  to Section 170(  b  )  appears to be well  founded.  Though the  normal  rule  is  that  the  incidental  and  ancillary powers of an appellate authority will include a power to grant stay of the order under appeal — vide,   ITO   v. M.K. Mohammed Kunhi  1   - that power cannot be read into Section 170(  b  ) for such an interpretation would render  Section  170(  b  )  totally  unworkable. An argument was addressed before us that such a power can be ascribed to the District Judge in view of the provisions  of  Section  457  of  the  Act  reproduced earlier.  Reliance  was  placed  on  the  Single  Bench’s decision of  the Delhi  High Court  in  Punj  Sons (P) Ltd. v.  Municipal  Corporation  of  Delhi19 where  a learned Single Judge of the Delhi High Court took the view that the District Judge, in view of Section 457 of the Act, has powers to take recourse to Order 41 Rule 5 of the Code of Civil Procedure in the appeal under Section 169 of the Act. With all due respect we do not agree with the reasoning of the learned Single Judge in the said case. In fact in the judgment under appeal all the three Judges have also dissented from this view of  the  learned  Single  Judge  in  the  matter  of  Punj Sons19.  The  reason  is  simple  as  Section  457  itself states that the procedure provided in the Code of Civil Procedure in regard to suits are to be followed “as far as it can be made applicable”. The other provisions of the  statute  totally  bar  the  grant  of  such  relief.  The other provisions have to be harmoniously read with it and  not  in  derogation  thereto.  Section  457  itself, therefore,  does  not  help  the  assessee  whose  case depends entirely on the construction to be placed on Section 170(b). But still one has to examine Section

19  1982 Rajdhani LR 247: (1982) 21 DLT 182 (Del HC)

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170(b) carefully to see whether, short of dismissing an appeal  for  default  of  payment  of  tax,  the  District Judge  has  any  latitude  in  the  matter.”   (Emphasis added)

22. Similar limitation has always been read into the width of inherent

powers  acknowledged by provisions  like  Section  151 of  the CPC20 and

Section  482  of  the  Cr.P.C.21  In  Vinod  Sethi  v. Devinder  Bajaj22,  the

discussion was as under:-

“28. As the provisions of the Code are not exhaustive, Section 151 is intended to apply where the Code does not  cover  any  particular  procedural  aspect,  and interests  of  justice  require  the  exercise  of  power  to cover  a  particular  situation.  Section  151  is  not  a provision of law conferring power to grant any kind of  substantive  relief.  It  is  a  procedural  provision saving the inherent power of the court to make such orders as may be necessary for the ends of justice and to prevent abuse of the process of the court. It cannot be  invoked  with  reference  to  a  matter  which  is covered by a specific provision in the Code. It cannot be exercised in conflict with the general scheme and intent of the Code. It cannot be used either to create or recognise rights, or to create liabilities and obligations not contemplated by any law.

29. Considering the scope of Section 151, in  Padam Sen v.  State of  U.P.23, this  Court  observed:  (AIR p. 219, paras 8-9)

20  Code of Civil Procedure, 1908 21  Code of Criminal Procedure, 1976 22  (2010) 8 SCC 1 23  (AIR 1961 SC 218)

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“8. … The inherent powers of the court are in addition to the powers specifically conferred on  the  court  by  the  Code.  They  are complementary to those powers and therefore it must be held that  the court  is  free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly  provided in  the  Code or  against  the intentions of the legislature. …

9.  …  The  inherent  powers  saved  by Section 151 of the Code are with respect to the procedure  to  be  followed  by  the  Court  in deciding the cause before it.  These powers are not  powers  over  the  substantive  rights  which any litigant possesses. Specific powers have to be  conferred  on  the  courts  for  passing  such orders  which  would  affect  such  rights  of  a party.”

(emphasis supplied)

30. In  Manohar  Lal  Chopra v.  Seth  Hiralal24,  this Court held: (AIR p. 533, para 21)

“21. … that the inherent powers are not in any  way  controlled  by  the  provisions  of  the Code as has been specifically stated in Section 151  itself.  But  those  powers  are  not  to  be exercised when their exercise may be in conflict with  what  had been expressly provided in  the Code or against the intentions of the legislature.”

31. In  Ram Chand and Sons Sugar Mills (P) Ltd. v. Kanhayalal Bhargava25 this Court reiterated that the inherent  power  of  the  court  is  in  addition  to  and complementary  to  the  powers  expressly  conferred under the Code but that power will not be exercised if its exercise is inconsistent with, or comes into conflict

24  (AIR 1962 SC 527) 25  (AIR 1966 SC 1899)

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with  any  of  the  powers  expressly  or  by  necessary implication conferred by the other provisions of the Code. Section 151 however is not intended to create a new procedure or any new right or obligation.

32. In  Nain  Singh v.  Koonwarjee26  this  Court observed: (SCC p. 735, para 4)

“4. … Under the inherent power of courts recognised by Section 151 CPC, a court has no power  to  do  that  which  is  prohibited  by  the Code. Inherent jurisdiction of the court must be exercised  subject  to  the  rule  that  if  the  Code does  contain  specific  provisions  which  would meet the necessities of the case, such provisions should  be  followed  and  inherent  jurisdiction should not be invoked. In other words the court cannot  make  use  of  the  special  provisions  of Section 151 of the Code where a party had his remedy provided elsewhere in the Code….””

 23. In respect of powers exercisable under Section 482 of the Cr.P.C., it

was observed in Sooraj Devi v. Pyare Lal and Another27,  “Now it is well

settled that the inherent power of the Court cannot be exercised for doing

that  which  is  specifically  prohibited  by  the  Code.”   The  principle  was

followed in  Simrikhia  v. Dolley Mukherjee and Chhabi Mukherjee and

Another28 and in State v. K. V. Rajendran and Others29.

26 (1970) 1 SCC 732 27 (1981) 1 SCC 500 28 (1990) 2 SCC 437 29 (2008) 8 SCC 673

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24. If  the  inherent  power  the  existence  of  which  is  specifically

acknowledged by provisions such as Section 151 of the CPC and Section

482 of the Cr.P.C. is to be read with the limitation that exercise of such

power cannot be undertaken for doing that which is specifically prohibited,

same limitation must be read into the scope and width of implied power of

an appellate authority under a statute.  In any case the principle laid down

in  Matajog Dobey18 states with clarity that so long as there is no express

inhibition,  the  implied  power  can  extend  to  doing  all  such  acts  or

employing such means as are reasonably necessary for such execution.  The

reliance on the principle laid down in  Kunhi1 cannot go to the extent, as

concluded  by  the  High  Court,  of  enabling  the  Appellate  Authority  to

override  the  limitation  prescribed  by  the  statute  and  go  against  the

requirement  of  pre-deposit.   The  High  Court  was  clearly  in  error  in

answering question (c).   

25. As stated in  P.  Laxmi Devi10 and Har Devi Asnani11,  in genuine

cases of hardship, recourse would still be open to the concerned person.

However, it would be completely a different thing to say that the Appellate

Authority itself can grant such relief.   As stated in  Shyam Kishore7 any

such exercise would make the provision itself unworkable and render the

statutory intendment nugatory.    

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26. In  the  premises,  we  accept  the  conclusions  drawn  by  the  High

Court as regards questions (a) and (b) are concerned but set aside the view

taken by the High Court as regards question (c).  The appeals preferred by

the assesses are therefore dismissed and those preferred by the State against

the decision in respect of question (c) are allowed.  No costs.

……………………..J. [Uday Umesh Lalit]

………………….…J. [Indu Malhotra]

New Delhi; September 18, 2019.