- (1.) THIS is a special appeal under sec. 14 (4-A) of the Rajasthan Sales Tax, 1954 against judgment dated 28-3-72 of the learned single Member of the Board of Revenue Rajasthan, Ajmer passed in revision No. 174 of 1970. The revision was against order dated 6 3-70 of learned Commercial Taxes Officer, Circle-B Kota. The revision was allowed and the impugned order of the learned Commercial Taxes Officer, Circle-B, Kota was quashed.
(2.) WE have heard learned counsel for both the parties and perused the record. The impugned order dated 6-3-70 of the Commercial Taxes Officer Circle-B, Kota is to the effect that warrant of attachment for recovery of sales tax against the respondent-firm has been received from the Commissioner, Commercial Taxes, Rajasthan, Jaipur under sec. 11 (4) of the Rajasthan Sales Tax Act. This firm has money deposited in several Banks in Ramganj Mandi and so these banks should be bound down under sec. 11 -A of the Rajasthan Sales Tax Act. Thus this impugned order was not under sec. 11 but under sec. 11-A of the Rajasthan Sales Tax Act. The Commercial Taxes Officer, circle-B, Kota issued notices dated 6 8-1970 to the 4-banks in Ramganj Mandi namely; Kota Central Co-operative Bank, Punjab National Bank, Rajasthan Bank and the State Bank of Bikaner & Jaipur to deposit money belonging to the respondent-firm under sec. 11-A of the Rajasthan Sales Tax Act. The learned single Member has relied in his judgment in revision 174 of 1970, decided on 28-3-72 and on 1970 RRD 214 (M/s. Kesla Laboratories, Alwar vs. State of Rajasthan ). This ruling has since been set aside by the learned division Bench of the Board d in special appeal No. 29 of 1972 decided on 29-1-1973 which has not yet been reported. Reliance could not, therefore, be placed on 1970 RRD 214 which stands overruled. The impugned order was really under sec. 11-A of the Rajasthan Sales Tax Act and not under sec. 1l. The provisions contained in sec. 11-A of the Rajasthan Sales Tax Act are in addition to the powers given under sec. 11 of the same Act and, therefore, the powers under sec. 11-A could be exercised along with powers that may be exercised under sec. 11 as held in 1958 (IX) STC 8 (C. M. Francis & Co. vs. State of Kerala ). In this ruling their Lordships of High Court of Kerala held chat where there is a specific provision in a statute as well as the general provision, and the case is covered by the specific provision which must govern the case and not the general one. In the present case the general provisions were as contained in sec. 11 of the Rajasthan Sales Tax Act subject to which recovery was being made from the respondent-firm and warrant for attachment and sale of the immovable property was obtained under sec. 11 (4) of the Rajasthan Sales Tax Act from the competent authority. This is abundantly clear from the impugned order dated 6-3-70 but the learned Commercial Taxes Officer, Circle-B Kota has further ordered on 6-3-70 that the respondent-firm has money lying in several banks in Ramganj Mandi and so action should be taken against these banks under sec. 11-A of the Rajasthan Sales Tax Act. The provisions contained in 11-A are, therefore, specific provisions in this statute and they will override the general provisions contained in sec. 11 as held by their Lordships of the High Court of Kerala in the above-mentioned case. Moreover the mode of recovery under sec. 11a gives additional powers to the assessing authority in addition to sec. 11 and the same could be exercised without any hindrance. It was, therefore, not a case under sec. 11 but under sec. 11a of the Rajasthan Act. The learned single Member of the Board has, therefore, erred in treating this case as if it was under sec. 11. As a matter of fact the Commercial Taxes Officer's order dated 6-3-1970 is very clear that he has ordered action against the various banks under the provision of sec. 11a of the Rajasthan Sales Tax Act. We further find that no stay has been granted for recovery of the disputed amount from the respondent-firm by any competent authority. If that would have been the case then the Commissioner, or the Deputy Commissioner, (Administration) could grant such a stay under the proviso to sec. 11 (3) of the Rajasthan Sales Tax Act provided the assessee furnished sufficient security to their satisfaction. Mere submission of an application for stay before these authorities is of no avail for the stay has neither been granted nor rejected. Moreover the 3rd proviso to sub-sec. (3) of sec. 11 of the Rajasthan Sales Tax Act provides that the Commissioner or the Deputy Commissioner (Administration) shall, before rejecting an application for stay for reco-very give the applicant a reasonable opportunity of being heard. It has, therefore, been rightly urged before us that applicant is to be heard with regard to application for stay only when the same is rejected but it is not necessary to hear him if such an application is accepted. Unfortunately in the present case neither the application for stay has been rejected or accepted and, therefore, unless an effective order for stay was granted, it could not be acted upon by any assessing authority. It is not necessary to obtain any permission of the Commissioner, Commercial Taxes, Rajasthan, Jaipur or the Deputy Commissioner, (Administration), Rajasthan Jaipur before the assessing authority decides to initiate any action against the bankers of the assessee in accordance with sec. 11a of the Rajasthan Sales Tax Act. The law does not require any such previous sanction of the higher authorities. On the other hand we find, as already pointed out above, the assessing authority is free to take action under sec. 11aofthe Rajasthan Sales Tax Act in addition to any action that might have been taken under sec. 11 of the same Act for sec. 11a grants additional powers for recovery of sales tax dues to an assessing authority. We do not find any error in the impugned order dated 9-3-70 passed by the learned Commercial Taxes Officer, Circle-B Kota which may be without jurisdiction and we do not find that he has committed any illegality or irregularity in passing an order under sec. 11a of the Rajasthan Sales Tax Act which has been misconstrued to be under sec. 11 (4) by the learned single Member of the Board. 1971 (V) T R. 71 (State of Rajasthan vs. M/s. Premnath Motors) and 1971 T. R. 88 (M/s. Deepak Cottage Industries vs. State of Rajasthan) are not at all applicable to the circumstances of the present case for the assessing authority has not acted under sec. 11 but under sec. 11a of the Rajasthan Sales Tax Act and there is no evidence that stay application was allowed by competent authority under sec. 11 of the Rajasthan Sales Tax Act. Mere pendency of such an application before the Commissioner or the Deputy Commissioner, (Administration) is of no effect for there is no effective order of stay given by the compentent authority in the present case which could prevent the assessing authority from initiating any action for recovery of dues in accordance with the powers vested in him under sec. 11a of the Rajasthan Sales Tax Act. We do not subscribe with the views of the learned single Member of the Board given in the case of "state of Rajasthan vs. M/s Thkurdass Kewalram" reported in 1973 (VIII) T. R. 109 that once a higher court is seized of a case the proceedings in lower court automatically come to a standstill and any proceedings taken by the lower court are without jurisdiction. Firstly we find that no higher court above the assessing authority has passed any order of stay in this case which may be an effective order unless such an order is communicated to the lower court the latter is not bound to merely recognise that a move for stay has been made by the applicant. Order should be final order of a higher court granting stay or otherwise and the same can then be recognised and implemented by the lower court. Since there is no effective order passed any competent authority in exercise of powers conferred by proviso (1) to sec. 11 (3) of the Rajasthan Sales Tax Act the lower court could not envisage what the higher court wanted to decide in a matter pending before him. In the above circumstances we accept this special appeal and set aside the order dated 21-3-1972 of the learned single Member of the Board and confirm order dated 6-3-1970 of the learned Commercial Taxes Officer Circle-B Kota which has been passed under sec. 11-A of the Rajasthan Sales Tax Act against the bankers of the respondent firm. .;