M/S TECNIMONT PVT. LTD. versus STATE OF PUNJAB & OTHERS on 18 September 2019

M/S TECNIMONT PVT. LTD.

(FORMERLY KNOWN AS TECNIMONT ICB PRIVATELIMITED)

v.

STATE OF PUNJAB & OTHERS

(Civil Appeal No. 7358 of 2019)

SEPTEMBER 18, 2019

[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]

Punjab Value Added Tax Act, 2005:

s. 62(5) – First Appeal – Validity of s. 62(5) – Condition of25% pre-deposit for hearing first appeal – Reasonableness of -Held: State is empowered to enact s. 62(5) – Thus, s. 62(5) is legaland valid and the condition of 25% of pre-deposit is not onerous,harsh, unreasonable and violative of Article 14 of the Constitutionof India.

s. 62(5) – First Appeal – Condition of 25% pre-deposit forhearing first appeal – Power of appellate authority to grant reliefagainst requirement of pre-deposit – Held: It cannot be said thatthe first appellate authority in its right to hear appeal has inherentpowers to grant interim protection against imposition of such acondition for hearing of appeals on merits – First appellate authorityis not empowered to partially or completely waive the condition ofpre-deposit contained therein in the given facts and circumstances– Any such exercise would make the provision itself unworkableand render the statutory intendment nugatory – Thus, the view takenby the High Court as regards waiving of the condition of pre-depositis set aside.

Dismissing the appeals filed by the assessees and allowingthose filed by the State, the Court HELD: 1.1 The High Court rightly held Section 62(5) ofthe Punjab Value Added Tax Act, 2005 to be legal and valid andthat the condition of 25% of pre-deposit not to be onerous, harsh,unreasonable and violative of Article 14 of the Constitution ofIndia. [Para 17][249-E]

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A1.2 In the instant case, the High Court found that theAppellate Authority would have implied power to grant such solaceand for arriving at such conclusion reliance is placed on thedecision of this Court in Kunhi. Kunhiundoubtedly laid down thatan express grant of statutory power carries with it, by necessaryBimplication, the authority to use all reasonable means to makesuch grant effective. But can such incidental or implied power bedrawn and invoked to grant relief against requirement of pre-deposit when the statute in clear mandate says – no appeal beentertained unless 25% of the amount in question is deposited?Would not any such exercise make the mandate of the provisionCof pre-deposit nugatory and meaningless? [Para 18, 19][249-H;250-A-B]

1.3 If the inherent power the existence of which isspecifically acknowledged by provisions such as Section 151 ofthe CPC and Section 482 of the Cr.P.C. is to be read with theDlimitation that exercise of such power cannot be undertaken fordoing that which is specifically prohibited, same limitation mustbe read into the scope and width of implied power of an appellateauthority under a statute. In any case the principle laid down inMatajog Dobey case states with clarity that so long as there is noEexpress inhibition, the implied power can extend to doing all suchacts or employing such means as are reasonably necessary forsuch execution. The reliance on the principle laid down in Kunhicannot go to the extent, as concluded by the High Court, ofenabling the Appellate Authority to override the limitationFprescribed by the statute and go against the requirement of pre-deposit. The High Court was clearly in error in holding that evenwhen no express power has been conferred on the first appellateauthority to pass an order of interim injunction/protection, bynecessary implication and intendment in view of variousGpronouncements and legal proposition expounded and in theinterest of justice, it would essentially be held that the power togrant interim injunction/protection is embedded in Section 62(5)of the PVAT Act. The first appellate authority is empowered topartially or completely waive the condition of pre-deposit containedtherein in the given facts and circumstances. Therefore, the powerHto grant interim protection/injunction by the first appellate

authority in appropriate cases in case of undue hardship is legaland valid. [Para 24, 6][238-F-G; 239-A, D; 254-B-D]

1.4 As stated in P. Laxmi Deviand Har Devi Asnani case, ingenuine cases of hardship, recourse would still be open to theconcerned person. However, it would be completely a differentthing to say that the Appellate Authority itself can grant suchrelief. As stated in Shyam Kishore’s case any such exercise wouldmake the provision itself unworkable and render the statutoryintendment nugatory. Thus, the view taken by the High Court asregards the said question is set aside. [Para 25][254-D-F]

Shyam Kishore and others v. Municipal Corporationof Delhi and another (1993) 1 SCC 22 – relied on.

Commissioner of Income Tax v.Bansi Dhar & Sons andOthers (1986) 157 ITR 665 (SC) : (1986) 1 SCC 523 :[1985] 3 Suppl. SCR 850;The Anant Mills Co. Ltd. v.State of Gujarat and Others (1975) 2 SCC 175 :[1975] 3 SCR 220;Seth Nand Lal and Another v. Stateof Haryana and Others1980 (Supp) SCC 574 : [1980]SCR 1181;Vijay Prakash D. Mehta and another v.Collector of Customs (Preventive), Bombay (1988) 4SCC 402 : [1988] 2 Suppl. SCR 434;Gujarat AgroIndustries Co. Ltd. v. Municipal Corporation of the Cityof Ahmedabad and others(1999) 4 SCC 468 : [1999]2 SCR 895;State of Haryana v. Maruti Udyog Ltd.and others (2000) 7 SCC 348 : [2000] 3 Suppl. SCR185;S.E. Graphites Private Limited v. State ofTelangana and Ors. (2019) SCC Online SC 842;Matajog Dubey v. H. C. Bhari 1955 (2) SCR 925 :[1955] 2 SCR 925; Vinod Sethi v. Devinder Bajaj (2010)8 SCC 1 : [2010] 7 SCR 424;Sooraj Devi v. Pyare Laland Another (1981) 1 SCC 500 : [1981] 2 SCR 485;Simrikhia v. Dolley Mukherjee and Chhabi Mukherjeeand Another(1990) 2 SCC 437 : [1990] 1 SCR 788;State v. K. V. Rajendran and Others (2008) 8 SCC 673: [2008] 12 SCR 1141; Government of Andhra Pradeshand others v. P. Laxmi Devi (Smt.) (2008) 4 SCC 720: [2008] 3 SCR 330;Har Devi Asnani v. State of A

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[2019] 12 S.C.R.

With

Civil Appeal Nos. 7359, 7360, 7379, 7373, 7378, 7372, 7382, 7362,7361, 7371, 7376, 7370, 7369, 7363, 7377, 7364, 7365, 7366, 7375, 7381,7374, 7367, 7368, 7380, 7383 of 2019.G

From the Judgment and Order dated 23.12.2015 of the High Courtof Punjab and Haryana at Chandigarh in Civil Writ Petition No. 26920of 2013.

V. Shekhar, Dev Datt Kamat, Sr. Advs., V. Lakshmikumaran,Ms. Charanya L., Aaditya Bhattacharya, Ms Apeksha Mehta, VictorHDas, Manish Rastogi, Vikas Singh Jangra, Praveen Kumar, Rajiv M/S TECNIMONT PVT. LTD. (FORMERLY KNOWN AS TECNIMONT ICBPVT. LTD.) v. STATE OF PUNJAB

Agnihotri, Ms. Babita Sant, Sandeep Goyal, Pawanshree Agrawal,Ms. Abhipsa Anamika, Kuldip Singh, Ms. Uttara Babbar, Ms. BhavanaDuhoon, Manan Bansal, Alok Yadav, Harish Pandey, Ms. RanjeetaRohatgi, Nishanth Patil, Javed Ur Rahman Pai Amit, PriyadarshiChaitanyashil, Ms. Sujata Kurdukar, Satinder S. Gulati, Mrs. KamaldeepGulati, Praveen Kumar, Ms. Manju Jetley, Ms. Neha Gulati, Jatinder PalSingh, Mayank Pandey, Ms. Sakshi Kakkar, Shakti Singh, SandeepChilana, Jasmeet Singh, Advs. for the appearing parties.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J.

1. Special leave to appeal granted.

2. These appeals challenge the judgment and order dated23.12.2015 passed by the High Court of Punjab and Haryana atChandigarh in Civil Writ Petition No.26920 of 2013 and all connectedmatters; and raise questions about the validity of Section 62(5) of thePunjab Value Added Tax Act, 2005 (hereinafter referred to as “the PVATAct”).

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

“62. First Appeal (1) An appeal against every original orderpassed under this Act or the rules made thereunder shall lie, - (a) if the order is made by a Excise and Taxation Officer orby an officer-in-charge of the information collection centreor check post or any other officer below the rank of DeputyExcise and Taxation Commissioner, to the Deputy Exciseand Taxation Commissioner; (b) if the order is made by the Deputy Excise and TaxationCommissioner, to the Commissioner;

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

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

(3) Every order of the Tribunal and subject only to such order, theorder of the Commissioner or any officer exercising the powersof the Commissioner or the order of the Deputy Excise and

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ATaxation Commissioner or of the designated officer, if it was notchallenged in appeal or revision, shall be final.

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

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

Explanation: For the purposes of this sub-section “additionalCdemand” means any tax imposed as a result of any order passedunder any of the provisions of this Act or the rules madethereunder or under the Central Sales Tax Act, 1956 (Act 74 of1956).

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

(a) affirming or amending or cancelling the assessment or theorder under appeal; or (b) may pass such order as it deems to be just and proper.

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

4. The questions involved in the matters were framed by the HighCourt as under:- F“(a) Whether the State is empowered to enact Section 62(5) ofthe PVAT Act?

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

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

5. Since number of petitions were filed challenging the validity ofaforesaid Section 62(5), the High Court had considered CWP No.26920

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M/S TECNIMONT PVT. LTD. (FORMERLY KNOWN AS TECNIMONT ICBPVT. LTD.) v. STATE OF PUNJAB [UDAY UMESH LALIT, J.]

of 2013 as the lead matter and the facts pertaining to said petition wereset out by the High Court in detail in para 2 of its decision as under:-

“The petitioner – Punjab State Power Corporation Limited is astatutory body constituted under the Electricity (Supply) Act, 1948.It is engaged in generation, distribution and supply of electricenergy/electricity power and other allied material to the consumersviz. domestic, commercial and industrial consumers in the Stateof Punjab and for that purpose, it is governed by the IndianElectricity Act, 1910 and Electricity (Supply) Act, 1948 as well asthe Rules and Regulations framed thereunder. The petitioner hadbeen filing returns as prescribed and whatever tax was payable interms of Section 15 of the Punjab Value Added Tax, 2005 (inshort, “the PVAT Act”) was being deposited. For the year 2007-08, returns for the period from 1.4.2007 to 31.3.2008 under thePVAT Act alongwith requisite information in prescribed form hadbeen filed with the authority. Thereafter, annual statement in FormVAT 20 had been filed before the last date as prescribed undersection 26 of the PVAT Act and Rule 40(1) of the Punjab ValueAdded Tax Rules, 2005 (in short, “the Rules”). Similarly, for theyears 2008-09 and 2009-10, returns were filed in time and annualstatements 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 years2007-08, 2008-09 and 2009-10 by issuing notice under section 29of the PVAT Act. The representatives of the petitioner attendedthe proceedings and tendered explanation. Assessments had beenframed 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 officer made following additions to the taxable turnoverdeclared in the returns:- i)the receipts in respect of charges from the customers asmeter rent had been brought to tax;

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

In addition to the above tax, the ETO imposed penalties undersection 53 and interest under section 32 of the PVAT Act, resulting A

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in raising demand of Rs.26,52,79,716/-, Rs.27,64,73,245/- andRs.22,18,31,454/- respectively for the aforesaid years. Thepetitioner challenged the order before this court by filing CWPNo.21127 of 2011. Vide order dated 7.11.2012, Annexure P.2,this Court relegated the petitioner to the remedy of appeal. Thepetitioner approached the appellate authority i.e. the Deputy Exciseand Taxation Commissioner (Appeals) by filing appeals underSection 62 of the PVAT Act for all the aforesaid assessment years.Alongwith the appeals, applications under Section 62 of the PVATAct for stay of recovery of tax and entertainment of the appealsby dispensing with the requirement of pre-deposits had also beenfiled on the ground that financial position of the petitioner wasvery tight and there were no liquid assets so as to make paymentof demand involved. Vide order dated 13.2.2013, the appellateauthority directed the petitioner to make deposit of 25% of theadditional demand in the government treasury by 27.2.2013 failingwhich the appeals would be dismissed in limine. Aggrieved bythe order, the petitioner filed appeals before the Punjab VATTribunal (in short, “the Tribunal”). It was pleaded by the petitionerthat its financial position was very poor and it was not in a conditionto make payment of 25% and the losses incurred by the petitionerhad been duly explained to the appellate authority. Since thepetitioner 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 inquestion, the same should be adjusted against the additional demandcreated by the assessing authority. The Tribunal agreed with thecontentions raised by the petitioner to the extent that the amountof voluntarily tax was required to be adjusted against the additionaldemand created by the assessing authority. However, the Tribunalwhile disposing of the appeals had observed that the petitionerwas required to deposit 25% of the amount of tax, penalty andinterest in terms of the order in the case of Ahulwalia ContractsIndia Pvt. Limited. Aggrieved by the order, the petitioner filedCWP Nos.17370 of 2013, 17031 and 17053 of 2013 which weredisposed of vide order dated 31.10.2013, Annexure P.8. Thepetitioner was allowed to withdraw the writ petition so as to enableit to challenge the vires of Section 62(5) of the PVAT Act alongwithchallenge to the orders passed by the Tribunal. Hence the instantwrit petitions by the petitioner(s).”

6. After framing the questions as aforesaid, the High Courtconsidered the relevant decisions of this Court as well as some of theHigh Courts and observed as under:- “It is, thus, concluded that the State is empowered to enact Section62(5) of the Act and the said provision is legal and valid. Thecondition of 25% pre-deposit for hearing first appeal is not onerous,harsh, unreasonable and violative of the provisions of Article 14of the Constitution of India.”

While considering question (c), the High Court principally reliedupon the decision of this Court in Income Tax Officer v. M. K.Mohammed Kunhi[1]and various judgments of the High Courts whichhad followed said decision. The relevant passages from the decision inKunhi[1] are:-

“The argument advanced on behalf of the Appellant before usthat in the absence of any express provisions in Sections 254 and255 of the Act relating to stay of recovery during the pendency ofan appeal it must be held that no such power can be exercised bythe Tribunal, suffers from a fundamental infirmity inasmuch as itassumes and proceeds on the premise that the statute conferssuch a power on the Income tax Officer who can give thenecessary relief to an Assessee. The right of appeal is asubstantive right and the questions of fact and law are at largeand are open to review by the appellate tribunal. Indeed the tribunalhas been given very wide powers under Section 254(1) for it maypass such orders as it thinks fit after giving full hearing to both theparties to the appeal. If the Income tax Officer and the AppellateAssistant Commissioner have made assessments or imposedpenalties raising very large demands and if the Appellate Tribunalis entirely helpless in the matter of stay or recovery the entirepurpose of the appeal can be defeated if ultimately the orders ofthe departmental authorities are set aside. It is difficult to conceivethat the legislature should have left the entire matter to theadministrative authorities to make such orders as they choose topass in exercise of unfettered discretion. The Assessee, as hasbeen pointed out before, has no right to even move an applicationwhen an appeal is pending before the appellate tribunal underSection 220(6) and it is only at the earlier stage of appeal before 1 (1969) 2 SCR 65

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the Appellate Assistant Commissioner that the statute providesfor such a matter being dealt with by the Income tax Officer. It isa firmly established rule that an express grant of statutory powercarries with it by necessary implication the authority to use allreasonable means to make such grant effective (SutherlandStatutory Construction, Third Edition, Articles 5401 and 5402).The powers which have been conferred by Section 254 on theAppellate Tribunal with widest possible amplitude must carry withthem by necessary implication all powers and duties incidentaland necessary to make the exercise of those powers fullyeffective…….

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

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The High Court also referred to the decision of this Court inCommissioner of Income Tax v. Bansi Dhar & Sons and Others[2].FFinally the High Court concluded :- “It is, thus, concluded that even when no express power has beenconferred on the first appellate authority to pass an order of interiminjunction/protection, in our opinion, by necessary implication andintendment in view of various pronouncements and legal propositionexpounded above and in the interest of justice, it would essentiallybe held that the power to grant interim injunction/protection isembedded in Section 62(5) of the PVAT Act. Instead of rushingto the High Court under Article 226 of the Constitution of India,the grievance can be remedied at the stage of first appellate G

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

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

authority. As a sequel, it would follow that the provisions of Section62(5) of the PVAT Act are directory in nature meaning therebythat the first appellate authority is empowered to partially orcompletely waive the condition of pre-deposit contained thereinin the given facts and circumstances. It is not to be exercised ina routine way or as a matter of course in view of the specialnature of taxation and revenue laws. Only when a strong primafacie case is made out will the first appellate authority considerwhether to grant interim protection/injunction or not. Partial orcomplete waiver will be granted only in deserving and appropriatecases where the first appellate authority is satisfied that the entirepurpose of the appeal will be frustrated or rendered nugatory byallowing the condition of pre-deposit to continue as a conditionprecedent to the hearing of the appeal before it. Therefore, thepower to grant interim protection/injunction by the first appellateauthority in appropriate cases in case of undue hardship is legaland valid. As a result, question (c) posed is answered accordingly.”

7. The appellant in appeal arising out of SLP(C) No.27072 of2016, though not party to the original proceedings, was granted permissionto challenge the instant decision of the High Court. The appellant aswell as those who are similarly placed are aggrieved by the decision ofthe High court as regards first two questions while challenge has beenraised on behalf of the State[3] to the conclusion of the High Court inrelation to question (c). All these matters were listed along with petitionsraising challenge with regard to the validity of Section 48(4) of theChhattisgarh Value Added Tax Act, 2005. The matters from Chhattisgarhwere disposed of by this Court by order dated 16.04.2019 passed in WritPetition (Civil) No.212 of 2014 and connected matters. The provisionsof the PVAT Act being somewhat different, the matters from the Stateof Punjab were directed to be dealt with separately. We heard learnedcounsel for the parties

8. In The Anant Mills Co. Ltd. v. State of Gujarat and Others[4],a Bench of four Judges of this Court considered inter alia, challenge tothe validity of Section 406 of the Bombay Provincial MunicipalCorporations Act, 1949 as amended by Gujarat Act No.5 of 1970. Asper the relevant provision, no appeal against the ratable value or tax 3 In appeals arising out of SLP(C)Nos. 1742, 1743 and 4383 of 2017

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Awould be entertained unless the amount claimed was deposited with theCommissioner. The proviso to said Section however empowered theJudge considering the appeal to relieve the appellant from the rigour ofpre-deposit if in the opinion of the Judge it would cause undue hardshipto the appellant. The discussion in that behalf was as under:-

“40. After hearing the learned counsel for the parties, we areunable to subscribe to the view taken by the High Court. Section406(2)(e) as amended states that no appeal against a rateablevalue or tax fixed or charged under the Act shall be entertainedby the Judge in the case of an appeal against a tax or in the caseof an appeal made against a rateable value after a bill for anyproperty tax assessed upon such value has been presented to theappellant, unless the amount claimed from the appellant has beendeposited by him with the Commissioner. According to the provisoto the above clause, where in any particular case the Judge is ofopinion that the deposit of the amount by the appellant will causeundue hardship to him, the Judge may in his discretion dispensewith such deposit or part thereof, either unconditionally or subjectto such conditions as he may deem fit. The object of the aboveprovision apparently is to ensure the deposit of the amount claimedfrom an appellant in case he seeks to file an appeal against a taxor against a rateable value after a bill for any property tax assessedupon such value has been presented to him. Power at the sametime is given to the appellate Judge to relieve the appellant fromthe rigour of the above provision in case the Judge is of the opinionthat it would cause undue hardship to the appellant. Therequirement about the deposit of the amount claimed as a conditionprecedent to the entertainment of an appeal which seeks tochallenge the imposition or the quantum of that tax, in our opinion,has not the effect of nullifying the right of appeal, especially whenwe keep in view the fact that discretion is vested in the appellateJudge to dispense with the compliance of the above requirement.All that the statutory provision seeks to do is to regulate the exerciseof the right of appeal. The object of the above provision is to keepin balance the right of appeal, which is conferred upon a personwho is aggrieved with the demand of tax made from him, and theright of the Corporation to speedy recovery of the tax. Theimpugned provision accordingly confers a right of appeal and atthe same time prevents the delay in the payment of the tax. We B

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find ourselves unable to accede to the argument that the impugnedprovision has the effect of creating a discrimination as is offensiveto the principle of equality enshrined in Article 14 of theConstitution. It is significant that the right of appeal is conferredupon all persons who are aggrieved against the determination oftax or rateable value. The bar created by Section 406(2)(e) to theentertainment of the appeal by a person who has not depositedthe amount of tax due from him and who is not able to show to theappellate Judge that the deposit of the amount would cause himundue hardship arises out of his own omission and default. Theabove provision, in our opinion, has not the effect of makinginvidious distinction or creating two classes with the object ofmeting out differential treatment to them; it only spells out theconsequences flowing from the omission and default of a personwho despite the fact that the deposit of the amount found duefrom him would cause him no hardship, declines of his own volitionto deposit that amount. The right of appeal is the creature of astatute. Without a statutory provision creating such a right theperson aggrieved is not entitled to file an appeal. We fail tounderstand as to why the Legislature while granting the right ofappeal cannot impose conditions for the exercise of such right. Inthe absence of any special reasons there appears to be no legal orconstitutional impediment to the imposition of such conditions. Itis permissible, for example, to prescribe a condition in criminalcases that unless a convicted person is released on bail, he mustsurrender to custody before his appeal against the sentence ofimprisonment would be entertained. Likewise, it is permissible toenact a law that no appeal shall lie against an order relating to anassessment of tax unless the tax had been paid. Such a provisionwas on the statute book in Section 30 of the Indian Income TaxAct, 1922. The proviso to that section provided that “. . . no appealshall lie against an order under sub-section (1) of Section 46 unlessthe tax had been paid”. Such conditions merely regulate theexercise of the right of appeal so that the same is not abused by arecalcitrant party and there is no difficulty in the enforcement ofthe order appealed against in case the appeal is ultimately dismissed.It is open to the Legislature to impose an accompanying liabilityupon a party upon whom legal right is conferred or to prescribeconditions for the exercise of the right. Any requirement for the ABCDEF

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Adischarge of that liability or the fulfilment of that condition in casethe party concerned seeks to avail of the said right is a valid pieceof legislation, and we can discern no contravention of Article 14in it. A disability or disadvantage arising out of a party’s own defaultor omission cannot be taken to be tantamount to the creation oftwo classes offensive to Article 14 of the Constitution, especiallyBwhen that disability or disadvantage operates upon all personswho make the default or omission.”

9. In Seth Nand Lal and Another vs. State of Haryana andOthers[5], the Constitution Bench of this Court was called upon to considerwhether the condition of pre-deposit for exercise of right of appeal wasCvalid or not. A submission was raised that unlike the provision whichwas considered in The Anant Mills Co. Ltd.[4], the Appellate Authoritywas 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 theDright of appeal is a creature of a statute and there is no reasonwhy the legislature while granting the right cannot impose conditionsfor the exercise of such right so long as the conditions are not soonerous as to amount to unreasonable restrictions rendering theright almost illusory (vide : the latest decision in Anant Mills Ltd.Ev. State of Gujarat[4]). Counsel for the appellants, however, urgedthat the conditions imposed should be regarded as unreasonablyonerous especially when no discretion has been left with theappellate or revisional authority to relax or waive the condition orgrant exemption in respect thereof in fit and proper cases and,therefore, the fetter imposed must be regarded as unconstitutionalFand struck down. It is not possible to accept this contention formore than one reason. In the first place, the object of imposingthe condition is obviously to prevent frivolous appeals and revisionthat impede the implementation of the ceiling policy; secondly,having regard to sub-sections (8) and (9) it is clear that the cashGdeposit or bank guarantee is not by way of any exaction but in thenature of securing mesne profits from the person who is ultimatelyfound to be in unlawful possession of the land; thirdly, the depositor the guarantee is correlated to the landholdings tax (30 timesthe tax) which, we are informed, varies in the State of Haryana D

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around a paltry amount of Rs 8 per acre annually; fourthly, thedeposit to be made or bank guarantee to be furnished is confinedto the landholdings tax payable in respect of the disputed area i.e.the area or part thereof which is declared surplus after leavingthe permissible area to the appellant or petitioner. Having regardto 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 theappellate/revisional authority to relax or waive the condition, cannotbe regarded as onerous or unreasonable. The challenge to Section18(7) must, therefore, fail.”

10. The principles laid down in The Anant Mills Co. Ltd.[4]and inSeth Nand Lal[5]have consistently been followed, for instance in (i) VijayPrakash D. Mehta and another vs. Collector of Customs(Preventive), Bombay[6]; (ii) Shyam Kishore and others vs. MunicipalCorporation of Delhi and another[7]; (iii) Gujarat Agro Industries Co.Ltd. vs. Municipal Corporation of the City of Ahmedabad andothers[8]; (iv) State of Haryana vs. Maruti Udyog Ltd. and others[9];(v) Government of Andhra Pradesh and others vs. P. Laxmi Devi(Smt.)[10]; (vi) Har Devi Asnani vs. State of Rajasthan and others[11];and(vii) S.E. Graphites Private Limited vs. State of Telangana andOrs.[12].

11. The decisions of this Court can broadly be classified in twocategories, going by the width and extent of the concerned provisions:-

a) Under the first category are the cases where, the concernedstatutory provision, while insisting on pre-deposit, itself givesdiscretion to the Appellate Authority to grant relief against therequirement of pre-deposit if the Appellate Authority is satisfiedthat insistence on pre-deposit would cause undue hardship to theappellant. The decisions in this category are The Anant MillsCo. Ltd.[4], Vijay Prakash D. Mehta[6], Gujarat AgroIndustries[8]and Maruti Udyog[9]

6 (1988) 4 SCC 4027 (1993) 1 SCC 228 (1999) 4 SCC 4689 (2000) 7 SCC 34810 (2008) 4 SCC 72011 (2011) 14 SCC 16012 (2019) SCC Online SC 842

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b) On the other hand, the decisions in said Seth Nand Lal[5], ShyamKishore[7], P. Laxmi Devi[10], Har Devi Asnani[11 ]andS.E.Graphites[12] dealt with cases where the statute did not conferany such discretion on the Appellate Authority and yet the challengeto the validity of such provisions was rejected.

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B12. The decision of the Constitution Bench of this Court in SethNand Lal[5 ]did consider whether the requirement of pre-deposit wouldcause undue hardship. However considering that the liability in questionand consequential requirement of pre-deposit was a meagre rate of theannual land-tax payable, the fetter imposed on the right of appeal/revision, even in the absence of a provision conferring the discretionCon the appellant/revisional authority to relax or waive the conditionwas not found to be onerous or unreasonable.

13. In Shyam Kishore[7], the provision that came up forconsideration was Section 170(b) of the Delhi Municipal CorporationAct, 1957 under which the amount in dispute relating to property tax isDrequired to be deposited before the appeal can be entertained. SaidSection 170(b) is as under:

“S.170 Conditions of right to appeal – No appeal shall beheard or determined under Section 169 unless- E(a) …..

(b) the amount, if any, in dispute in the appeal has been depositedby the appellant in the office of the Corporation.”

After considering relevant decisions on the point, a modality wassuggested under which some relief could be granted to the concernedFappellant but finally a Bench of three Judges of this Court suggestedthat the solution lay in having the statute itself amended. The discussionin that behalf was as under:- “44. ……… The appellate judge’s incidental and ancillary powersshould not be curtailed except to the extent specifically precludedGby the statute. We see nothing wrong in interpreting the provisionas permitting the appellate authority to adjourn the hearing of theappeal thus giving time to the assessee to pay the tax or evenspecifically granting time or instalments to enable the assessee todeposit the disputed tax where the case merits it, so long as itdoes not unduly interfere with the appellate court’s calendar of H

hearings. His powers, however, should stop short of staying therecovery of the tax till the disposal of the appeal. We say thisbecause it is one thing for the judge to adjourn the hearing leavingit to the assessee to pay up the tax before the adjourned date orpermitting the assessee to pay up the tax, if he can, in accordancewith his directions before the appeal is heard. In doing so, he doesnot and cannot injunct the department from recovering the tax, ifthey wish to do so. He is only giving a chance to the assessee topay 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 thedisposal of the appeal; that would result in modifying the languageof the proviso to read: “no appeal shall be disposed of until thetax is paid”. Short of this, however, there is no reason to restrictthe powers unduly; all he has to do is to ensure that the entire taxin dispute is paid up by the time the appeal is actually heard on itsmerits. We would, therefore, read clause (b) of Section 170 onlyas a bar to the hearing of the appeal and its disposal on merits andnot as a bar to the entertainment of the appeal itself.

46. We only wish that the statute itself is soon amended to makethis position clear. After all, under the D.M.C. Act, the appellateauthority is a high judicial officer, being the District Judge, andthere is no reason why the Legislature should not trust such ahigh judicial officer to exercise his discretion in such a way as tosafeguard the interests of both the Revenue and the assessees.We think that, until this is done, the provision requires a liberalinterpretation so as to preserve such interests and should not beso rigidly construed as to warrant the throwing out of an appeal inlimine merely because the tax is not paid before the appeal isfiled.”

14. In P. Laxmi Devi[10], validity of the proviso to Section 47A ofthe Indian Stamp Act, 1899 was in issue. The High Court had held saidprovision 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 registeringofficer unless an amount equal to fifty per cent of the deficitduty arrived at by him is deposited by the party concerned.”

The relevant discussion was as under:-

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A“18. In our opinion, there is no violation of Articles 14, 19 or anyother provision of the Constitution by the enactment of Section47-A as amended by A.P. Amendment Act 8 of 1998. Thisamendment was only for plugging the loopholes and for quickrealisation of the stamp duty. Hence it is well within the power ofthe State Legislature vide Entry 63 of List II read with Entry 44Bof List III of the Seventh Schedule to the Constitution.

19. It is well settled that stamp duty is a tax, and hardship is notrelevant in construing taxing statutes which are to be construedstrictly. As often said, there is no equity in a tax vide CIT v. V.MR.P.Firm Muar[13]. If the words used in a taxing statute are clear, onecannot 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 supposedobject and intendment of the Stamp Act, and by seeking to findout the hardship which will be caused to a party by the impugnedamendment of 1998.

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20. In Partington v. Attorney General[14] Lord Cairns observedas under:

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

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The above observation has often been quoted with approval bythis Court, and we endorse it again. In Bengal Immunity Co. Ltd.v. State of Bihar[15] this Court held that if there is hardship in astatute it is for the legislature to amend the law, but the courtcannot be called upon to discard the cardinal rule of interpretationfor mitigating a hardship.

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21. It has been held by a Constitution Bench of this Court in ITOv. T.S. Devinatha Nadar[16] (vide AIR paras 23 to 28) that wherethe language of a taxing provision is plain, the court cannot concern G

13 AIR 1965 SC 121614 (1869) LR 4 HL 10015 AIR 1955 SC 661H16 AIR 1968 SC 623

itself with the intention of the legislature. Hence, in our opinionthe High Court erred in its approach of trying to find out the intentionof the legislature in enacting the impugned amendment to the StampAct.

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

23. In Gujarat Agro Industries Co. Ltd. v. Municipal Corpn.of the City of Ahmedabad[8] this Court referred to its earlierdecision in Vijay Prakash D. Mehta v. Collector of Customs[6]wherein this Court observed: (Vijay Prakash case, SCC p. 406,para 9)

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

While dealing with the submission that in terms of said proviso, norelief could be granted even in cases where the requirement of pre-deposit may result in great prejudice, this Court went on to observe:- “28. We may, however, consider a hypothetical case. Supposingthe correct value of a property is Rs 10 lakhs and that is the valuestated in the sale deed, but the registering officer erroneouslydetermines it to be, say, Rs 2 crores. In that case while making areference to the Collector under Section 47-A, the registeringofficer will demand duty on 50% of Rs 2 crores i.e. duty on Rs 1crore instead of demanding duty on Rs 10 lakhs. A party may notbe able to pay this exorbitant duty demanded under the proviso toSection 47-A by the registering officer in such a case. What canbe done in this situation?

29. In our opinion in this situation it is always open to a party tofile a writ petition challenging the exorbitant demand made by the A

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248SUPREME COURT REPORTS

Aregistering officer under the proviso to Section 47-A alleging thatthe determination made is arbitrary and/or based on extraneousconsiderations, and in that case it is always open to the High Court,if it is satisfied that the allegation is correct, to set aside suchexorbitant demand under the proviso to Section 47-A of the StampAct by declaring the demand arbitrary. It is well settled thatBarbitrariness violates Article 14 of the Constitution vide ManekaGandhi v. Union of India[17]. Hence, the party is not remedilessin this situation.”

15. In Har Devi Asnani[11 ]the validity of proviso to Section 65(1)of the Rajasthan Stamp Act, 1998 came up for consideration in terms ofCwhich no revision application could be entertained unless it wasaccompanied by a satisfactory proof of the payment of 50% of therecoverable amount. Relying on the earlier decisions of this Courtincluding in P. Laxmi Devi[10], the challenge was rejected and the thoughtexpressed in P. Laxmi Devi[10] was repeated in Har Devi Asnani[11] asDunder:- “27. In Govt. of A.P. v. P. Laxmi Devi[10] this Court, while upholdingthe proviso to sub-section (1) of Section 47-A of the Stamp Actintroduced by Andhra Pradesh Amendment Act 8 of 1998,observed: (SCC p. 737, para 29)

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“29. In our opinion in this situation it is always open to a partyto file a writ petition challenging the exorbitant demand madeby the registering officer under the proviso to Section 47-Aalleging that the determination made is arbitrary and/or basedon extraneous considerations, and in that case it is always openFto the High Court, if it is satisfied that the allegation is correct,to set aside such exorbitant demand under the proviso to Section47-A of the Stamp Act by declaring the demand arbitrary. It iswell settled that arbitrariness violates Article 14 of theConstitution (vide Maneka Gandhi v. Union of India[17]).Hence, the party is not remediless in this situation.”G28. In our view, therefore, the learned Single Judge should haveexamined the facts of the present case to find out whether thedetermination of the value of the property purchased by theappellant and the demand of additional stamp duty made from the H17 (1978) 1 SCC 248 = AIR 1978 SC 597

appellant by the Additional Collector were exorbitant so as to callfor interference under Article 226 of the Constitution.

16. These decisions show that the following statements of law inThe Anant Mills Co. Ltd.[4]have guided subsequent decisions of thisCourt:

“…The right of appeal is the creature of a statute. Without astatutory provision creating such a right the person aggrieved isnot entitled to file an appeal.

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

….It is open to the Legislature to impose an accompanying liabilityupon a party upon whom legal right is conferred or to prescribeconditions for the exercise of the right. Any requirement for thedischarge of that liability or the fulfilment of that condition in casethe party concerned seeks to avail of the said right is a valid pieceof legislation.”

17. In the light of these principles, the High Court rightly heldSection 62(5) of the PVAT Act to be legal and valid and the condition of25% of pre-deposit not to be onerous, harsh, unreasonable and violativeof Article 14 of the Constitution of India. Now we turn to question (c)as framed by the High Court and consider whether the conclusions drawnby 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 inparagraph 11 hereinabove, where no discretion was conferred by theStatute upon the Appellate Authority to grant relief against requirementof pre-deposit, the challenge to the validity of the concerned provision ineach of those cases was rejected. But the decision of the ConstitutionBench of this Court in Seth Nand Lal[5]was in the backdrop of what thisCourt considered to be meagre rate of the annual land-tax payable.The decision in Shyam Kishore[7]attempted to find a solution and providesome succour in cases involving extreme hardship but was well awareof the limitation. Same awareness was expressed in P. Laxmi Devi[10]and in Har Devi Asnani[11 ]and it was stated that in cases of extremehardship a writ petition could be an appropriate remedy. But in the presentcase the High Court has gone a step further and found that the AppellateAuthority would have implied power to grant such solace and for arriving A

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Aat such conclusion reliance is placed on the decision of this Court inKunhi[1].

19. Kunhi[1] undoubtedly laid down that an express grant ofstatutory power carries with it, by necessary implication, the authority touse all reasonable means to make such grant effective. But can suchBincidental or implied power be drawn and invoked to grant relief againstrequirement of pre-deposit when the statute in clear mandate says – noappeal 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?

20. While dealing with the scope and width of implied powers, theConstitution Bench of this Court in Matajog Dubey v. H. C. Bhari[18]also touched upon the issue whether exercise of such power can permitgoing against the express statutory provision inhibiting the exercise ofsuch power. The discussion was as under:- C

D“Where a power is conferred or a duty imposed by statute orotherwise, and there is nothing said expressly inhibiting the exerciseof the power or the performance of the duty by any limitations orrestrictions, it is reasonable to hold that it carries with it the powerof doing all such acts or employing such means as are reasonablynecessary for such execution. If in the exercise of the power orEthe performance of the official duty, improper or unlawfulobstruction or resistance is encountered, there must be the rightto use reasonable means to remove the obstruction or overcomethe resistance. This accords with common sense and does notseem contrary to any principle of law. The true position is neatlyFstated thus in Broom’s Legal Maxims, 10th Ed., at page 312 : “Itis a rule that when the law commands a thing to be done, itauthorises the performance of whatever may be necessary forexecuting its command.” (Emphasis added)

21. The same principle was adverted to in Shyam Kishore[7]. WhatGis noteworthy is that the decision in Kunhi[1]was also considered and itwas observed :- “40. We have set out the terms of Section 170(b) earlier. Thishas been interpreted by the Corporation to mean that an appealpreferred by an assessee has to be dismissed in limine unless the H18 1955 (2) SCR 925

tax in dispute has been paid and that there is no scope for theappellate authority exercising any powers of stay pending disposalof the appeal. Prima facie, the contention of the Corporation thatto read a power in the District Judge to grant stay of collection ofthe disputed tax pending disposal of the appeal will run counter toSection 170(b) appears to be well founded. Though the normalrule is that the incidental and ancillary powers of an appellateauthority will include a power to grant stay of the order underappeal — vide, ITO v. M.K. Mohammed Kunhi1- that powercannot be read into Section 170(b) for such an interpretation wouldrender Section 170(b) totally unworkable.An argument wasaddressed before us that such a power can be ascribed to theDistrict Judge in view of the provisions of Section 457 of the Actreproduced earlier. Reliance was placed on the Single Bench’sdecision of the Delhi High Court in Punj Sons (P) Ltd. v.Municipal Corporation of Delhi[19] where a learned Single Judgeof the Delhi High Court took the view that the District Judge, inview of Section 457 of the Act, has powers to take recourse toOrder 41 Rule 5 of the Code of Civil Procedure in the appealunder Section 169 of the Act. With all due respect we do notagree with the reasoning of the learned Single Judge in the saidcase. In fact in the judgment under appeal all the three Judgeshave also dissented from this view of the learned Single Judge inthe matter of Punj Sons[19]. The reason is simple as Section 457itself states that the procedure provided in the Code of CivilProcedure in regard to suits are to be followed “as far as it can bemade applicable”. The other provisions of the statute totally barthe grant of such relief. The other provisions have to beharmoniously read with it and not in derogation thereto. Section457 itself, therefore, does not help the assessee whose casedepends entirely on the construction to be placed on Section170(b). But still one has to examine Section 170(b) carefully tosee whether, short of dismissing an appeal for default of paymentof tax, the District Judge has any latitude in the matter.” (Emphasisadded)

22. Similar limitation has always been read into the width of inherentpowers acknowledged by provisions like Section 151 of the CPC[20] and 19 1982 Rajdhani LR 247: (1982) 21 DLT 182 (Del HC)

20 Code of Civil Procedure, 1908

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ASection 482 of the Cr.P.C.[21] In Vinod Sethi v. Devinder Bajaj[22], thediscussion was as under:- “28. As the provisions of the Code are not exhaustive, Section151 is intended to apply where the Code does not cover anyparticular procedural aspect, and interests of justice require theexercise of power to cover a particular situation. Section 151 isnot a provision of law conferring power to grant any kind ofsubstantive relief. It is a procedural provision saving the inherentpower of the court to make such orders as may be necessary forthe ends of justice and to prevent abuse of the process of thecourt. It cannot be invoked with reference to a matter which iscovered by a specific provision in the Code. It cannot be exercisedin conflict with the general scheme and intent of the Code. Itcannot be used either to create or recognise rights, or to createliabilities and obligations not contemplated by any law.

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

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“8. … The inherent powers of the court are in addition to thepowers specifically conferred on the court by the Code. They arecomplementary to those powers and therefore it must be heldthat the court is free to exercise them for the purposesmentioned in Section 151 of the Code when the exercise ofthose powers is not in any way in conflict with what has beenexpressly provided in the Code or against the intentions ofthe legislature. …

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9. … The inherent powers saved by Section 151 of the Code arewith respect to the procedure to be followed by the Court indeciding the cause before it. These powers are not powers overthe substantive rights which any litigant possesses. Specificpowers have to be conferred on the courts for passing suchorders which would affect such rights of a party.”

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(emphasis supplied)

21 Code of Criminal Procedure, 197622 (2010) 8 SCC 1

H23 (AIR 1961 SC 218)

30. In Manohar Lal Chopra v. Seth Hiralal[24], this Court held:(AIR p. 533, para 21)

“21. … that the inherent powers are not in any way controlledby the provisions of the Code as has been specifically stated inSection 151 itself. But those powers are not to be exercisedwhen their exercise may be in conflict with what had beenexpressly provided in the Code or against the intentions of thelegislature.”

31. In Ram Chand and Sons Sugar Mills (P) Ltd. v. KanhayalalBhargava[25] this Court reiterated that the inherent power of thecourt is in addition to and complementary to the powers expresslyconferred under the Code but that power will not be exercised ifits exercise is inconsistent with, or comes into conflict with any ofthe powers expressly or by necessary implication conferred bythe other provisions of the Code. Section 151 however is notintended to create a new procedure or any new right or obligation.

32. In Nain Singh v. Koonwarjee[26] this Court observed: (SCCp. 735, para 4)

“4. … Under the inherent power of courts recognised by Section151 CPC, a court has no power to do that which is prohibitedby the Code. Inherent jurisdiction of the court must beexercised subject to the rule that if the Code does containspecific provisions which would meet the necessities of thecase, such provisions should be followed and inherent jurisdictionshould not be invoked. In other words the court cannot makeuse of the special provisions of Section 151 of the Code wherea party had his remedy provided elsewhere in the Code….””

23. In respect of powers exercisable under Section 482 of theCr.P.C., it was observed in Sooraj Devi v. Pyare Lal and Another[27],“Now it is well settled that the inherent power of the Court cannotbe exercised for doing that which is specifically prohibited by theCode.” The principle was followed in Simrikhia v. Dolley Mukherjee

24 (AIR 1962 SC 527)25 (AIR 1966 SC 1899)26 (1970) 1 SCC 73227 (1981) 1 SCC 500

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Aand Chhabi Mukherjee and Another[28] and in State v. K. V. Rajendranand Others[29].

24. If the inherent power the existence of which is specificallyacknowledged by provisions such as Section 151 of the CPC and Section482 of the Cr.P.C. is to be read with the limitation that exercise of suchBpower cannot be undertaken for doing that which is specifically prohibited,same limitation must be read into the scope and width of implied powerof an appellate authority under a statute. In any case the principle laiddown in Matajog Dobey[18] states with clarity that so long as there is noexpress inhibition, the implied power can extend to doing all such acts oremploying such means as are reasonably necessary for such execution.CThe reliance on the principle laid down in Kunhi[1]cannot go to the extent,as concluded by the High Court, of enabling the Appellate Authority tooverride the limitation prescribed by the statute and go against therequirement of pre-deposit. The High Court was clearly in error inanswering question (c).D[[10]][[11]]

25. As stated in P. Laxmi Devi[[10]]andHar Devi Asnani[[11]], in genuinecases of hardship, recourse would still be open to the concerned person.However, it would be completely a different thing to say that the AppellateAuthority itself can grant such relief. As stated in Shyam Kishore[7] anysuch exercise would make the provision itself unworkable and renderEthe statutory intendment nugatory.

26. In the premises, we accept the conclusions drawn by the HighCourt as regards questions (a) and (b) are concerned but set aside theview taken by the High Court as regards question (c). The appealspreferred by the assesses are therefore dismissed and those preferredFby the State against the decision in respect of question (c) are allowed.No costs.

Nidhi Jain

Appeals disposed of.

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28 (1990) 2 SCC 437H29 (2008) 8 SCC 673