9911796707
TMI Blog1988 (7) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... or stay was also filed. The first respondent, by exhibit P9 order dated 20th May, 1988, directed the appellant to remit 50 per cent of the tax and also directed to furnish security for the remaining amount. In the original petition, the petitioner/appellant attacked exhibit P9 as illegal. He also prayed for the issue of a writ of mandamus directing the first respondent to consider and dispose of exhibit P7 appeal on merits and also for a direction to the second respondent not to initiate proceedings for recovery of amounts till the disposal of exhibit P7 appeal. A learned single judge of this Court, by judgment dated 10th June, 1988, dismissed the original petition. It was held that "in exercise of the power under article 226 of the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first respondent has totally ignored the basic principles to be borne in mind in disposing of the stay petition. It was stated that by passing exhibit P9 order the first respondent has failed to exercise the discretion vested in him under law as enjoined by the decisions of courts. It amounts to exercise of "no discretion" in the eye of law. On the other hand, counsel for the Revenue tried to persuade us to hold that on a totality of the facts and circumstances of the case the first respondent has acted in accordance with law. 4.. There are a number of decisions of this Court which lay down the guidelines to be followed by the assessing or the appellate authority in disposing of the stay petitions pending appeals. One of the earliest dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cretion vested in it arbitrarily or capriciously or totally in an unreasonable manner, as to amount to the exercise of "no discretion" in the eye of law, this Court can, in exercise of the jurisdiction vested in it under article 226 of the Constitution, issue a writ of mandamus directing the concerned authority to exercise the discretion in accordance with law. In this case, we are satisfied that the first respondent in passing exhibit P9 order has acted mechanically and without applying his mind. There is nothing in the order to show that the first respondent had borne in mind the principles laid down by the decisions mentioned in para 4 supra in passing exhibit P9 order. We are of the view that the first respondent has failed to exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the exercise of the discretion by the concerned authorities. The appeals preferred before the appellate authorities under the various taxing statutes may involve many questions-from simple estimated additions to complicated questions of law. It is only after an evaluation and appraisal of the facts and circumstances in each case, the appellate or the assessing authority should decide as to the nature of the order that should be passed in the stay petitions. If without an independent evaluation and appraisal of facts, a mechanical order like exhibit P9 is issued, it will cause irreparable injury to the Revenue also and public interest is likely to suffer. For example, if a particular aspect or issue taken in appeal is covered by a deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, Mr. Gopalakrishna Pillai, Member, Board of Revenue (Taxes) was present in Court. We explained to him about the mechanical, casual and careless manner on which the authorities functioning under the Kerala General Sales Tax Act or the Agricultural Income-tax Act are passing orders in stay petitions, unmindful of their statutory duties and obligations and the irreparable injury and hardship that will ensue as a consequence thereof. Taking into account the submissions made by the Member, Board of Revenue (Taxes) in Court, it does not appear that the Board of Revenue which is the highest authority invested with powers to administer this branch is properly or fully in the know of things-a deplorable situation indeed. The Member (Board of Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X
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