1966 (2) TMI 69 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Whether the appellate authority failed to exercise its discretionary power as conferred by law.
2. Whether the petitioner can invoke the writ jurisdiction of the High Court under Article 226 of the Constitution when a regular appeal is available.

Issue-wise Detailed Analysis:

1. Failure to Exercise Discretionary Power:

The petitioner argued that the appellate authority did not apply its mind to the facts and circumstances of the case to determine whether it was a fit case for exercising its discretion to stay the payment of tax pending appeal. According to Section 19(1)(b) of the Andhra Pradesh General Sales Tax Act, the appellate authority has the discretion to stay the payment of the whole or part of the tax assessed. This discretion is not absolute and must be exercised judicially, not arbitrarily or capriciously. The appellate authority must consider all the circumstances of the case and come to a conclusion based on the facts presented.

The judgment highlighted that the appellate authority failed to consider the grounds raised in the appeals and the reasons given in support of the plea for stay. The record disclosed that the appellate authority did not advert to the facts of the case and merely issued a notice to the petitioner to pay the balance of tax within 10 days, without a speaking order or indication that the plea for stay was considered.

The court referred to several precedents, including Vetcha Sreeramamurthy v. Income-tax Officer and E. Krishnappa Naicker v. The Deputy Commercial Tax Officer, to support the conclusion that the discretionary power conferred by statute is coupled with a duty to exercise it properly and with judicious care. The appellate authority's failure to do so rendered its order amenable to writ jurisdiction.

2. Invocation of Writ Jurisdiction under Article 226:

The second issue was whether the petitioner could invoke the writ jurisdiction of the High Court under Article 226 of the Constitution when a regular appeal was available. The respondent contended that the petitioner had an effective remedy available by way of appeal to the Appellate Tribunal and, therefore, could not invoke the writ jurisdiction.

The court held that it is within its powers to interfere with the order passed by the appellate authority in its extraordinary jurisdiction, especially when the appellate authority failed to exercise its discretion properly. The court noted that the remedy of appeal to the Appellate Tribunal was not quite handy and was onerous, thus justifying the invocation of writ jurisdiction.

The court concluded that the appellate authority failed to discharge its duty by not considering the plea for stay and summarily rejecting the appeals. Therefore, the writ petitions were allowed, and the order dated 31st July 1963, rejecting the appeal, was quashed. The appellate authority was directed to deal with the appeals in accordance with law from the stage immediately prior to the notice dated 20th May 1963.

Conclusion:

The petitions were allowed with costs, and the appellate authority was directed to reconsider the appeals in accordance with law, ensuring that the discretionary power is exercised judiciously. The court emphasized the duty of the appellate authority to apply its mind to the facts and circumstances of each case before making a decision.