9911796707
TMI Blog1966 (2) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 7,05,081.25 nP. For the succeeding year on a gross turnover of Rs. 32,36,186-5-3 it was assessed to a tax of only Rs. 23,277.07 nP. as second point purchase exemption was allowed on a turnover of Rs. 23,63,213-11-9. On appeal this tax was further reduced and eventually the tax payable for that year was only Rs. 16,311.67 nP. In this was also included the Central sales tax to the extent of Rs. 75. For the assessment year 1958-59 with which we are concerned in this proceeding, the said firm is said to have submitted in the office of the Commercial Tax Officer, Nizamabad, its returns in Form A-2 every month as required by the Andhra Pradesh General Sales Tax Act and nil returns in respect of Central sales tax. The petitioner complains that the Commercial Tax Officer towards the end of the year 1958 seized all these account books for the years 1955-56 and 1957-58 and the Special Commercial Tax Officer likewise, took away the account books, purchase books etc., maintained up to date for the period 1958-59 and that these books were not returned as a result of which he could not submit his income-tax returns etc., nor could he make recoveries of his outstandings. It is his further case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in support of his contention. The case of the petitioner was that he did not do any business which attracted the levy of tax under the Central Sales Tax Act in that year. The Commercial Tax Officer, however, assessed the petitioner in this behalf to a tax of Rs. 1,00,570.63 nP. on a turnover of Rs. 21,93,195. The petitioner thereupon filed his appeal under the Central Sales Tax Act. In the memoranda filed in both the appeals, the petitioner characterised the assessment as grossly unjust, arbitrary and illegal. Heavy as the tax was, levied under two Acts for the same year, he expressed his utter inability to pay the same and requested the appellate authority to stay the payment of tax pending disposal of appeals in view of the circumstances mentioned by him. These memoranda were submitted on the 14th May, 1963. The case of the petitioner is that the appellate authority did not apply its mind to the facts stated by him to come to the conclusion whether it was a fit case for exercise of its discretion and eventually made an order summarily rejecting the appeal on the ground that the petitioner in response to notice dated 20th May, 1963, failed to pay the balance of tax levied and to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority failed to exercise his power of discretion conferred on him by law; if so, whether such a failure warrants interference by this Court? (2) When a regular appeal is open to the aggrieved party, can he invoke the writ jurisdiction of this Court under Article 226 of the Constitution? The two conditions that were attached to the appeal were that it should be filed within 30 days from the date of the service of the order and should be accompanied by satisfactory proof of payment of tax. The appeals filed by the petitioner satisfied the first condition; but not the second. However, even that is not a condition which could not be waived. Section 19(1)(b) which is relevant for the purpose reads thus: "No appeal against an order of assessment shall be entertained under this sub-section unless it is accompanied by satisfactory proof of the payment of the tax assessed and the penalty, if any, levied or of such instalments thereof as have become payable; but the appellate authority may in its discretion stay the payment of the whole or part of the tax assessed or any penalty levied." Thus it was open to the appellate authority to direct stay of the payment either of the whole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al opinion in support of this conclusion. In most of those cases the conclusions were based on the construction of a similar expression "may in its discretion" occurring in section 45 of the Income-tax Act, 1922. In Vetcha Sreeramamurthy v. Income-tax Officer and Another[1956] 30 I.T.R. 252; A.I.R. 1957 A.P. 114., Subba Rao, C.J. (as he then was), while construing the said expression observed as follows: "The discretionary statutory power conferred upon an authority for the public good is coupled with a duty to perform it under relevant circumstances. The fact that the exercise of the power is left to the discretion of the authorised person does not exonerate him from discharging his duty. If the discretionary power so conferred is exercised arbitrarily, capriciously or unreasonably or by taking into consideration extraneous and irrelevant considerations, in the eye of law, the authority concerned must be deemed not to have exercised the discretion at all, that is, he has not discharged his duty." Viswanatha Sastri, J. (in the same case) expressed himself thus: "If an Income-tax Officer declines to hear and consider the application of an assessee under section 45 for an order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... twithstanding anything contained in section 31, where an assessee has presented an appeal under section 23, the Wealth Tax Officer may in his discretion treat the assessee as not being in default as long as such appeal is undisposed of." Sinha, J., in his judgment referred to the following dictum of Das Gupta, J., in Kashiram Agarwalla v. Collector of 24-Parganas[1958] 33 I.T.R. 800.: "......Whether or not an assessee would be considered to be in default after an appeal is filed against the assessment is a matter entirely in the discretion of the Income-tax Officer, who has, however, to exercise his discretion after due regard to the circumstances of the case. If in a particular case, the question of exercise of discretion has not been considered properly by the Income-tax Officer that might be good ground for issuing a writ directing him to treat the assessee to be not in default. " Then the learned Judge observed: "In my opinion, the law has been rightly laid down by Das Gupta, J., and there can be no doubt that the matter is one of discretion to be exercised judicially. A judicial exercise of discretion involves a consideration of the facts and circumstances of the case in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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