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TMI Blog1998 (7) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that no reasons have been assigned by the appellate authority and the order of the appellate authority is contrary to the decision of this Court in the case of B.M. Moidin Kunhi v. State of Mysore [1971] 27 STC 154 wherein it was observed: In the instant case, the assessee in his application for stay had submitted that he had no cash resources, that the amount involved in the three appeals was large and that he was offering security of immovable properties situated in two villages of Sullia Taluk in South Kanara District. The order made under the proviso to sub-section (3) being an appealable order, the appellate authority ought to give reasons for the rejection of the offer of security made by the assessee. The order of the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputed tax and penalty if the appellant furnishes sufficient security to the satisfaction of the appellate authority. The security to be furnished should be in any one of the forms prescribed in rule 30-B. In exercise of the discretion of granting stay of recovery of disputed tax or penalty pending the appeal, the appellate authority should exercise the discretion in accordance with settled judicial principles. The question which the appellate authority should consider is whether the security offered by the assessee is sufficient. Where the assessee offers security of immovable property, the appellate authority should consider whether that property is unencumbered; whether its title is clear and it is adequate to fully secure the payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sons [1970] 75 ITR 646 (All.). In the matter of Bhanwar Lal Jain v. State of Rajasthan [1980] 45 STC 92 (Raj), it was observed: Where the petitioner-dealer filed an application before the Commissioner for stay of recovery of the whole amount of the tax assessed under the Rajasthan Sales Tax Act, 1954, but the Additional Commissioner passed an order in a cyclostyled form staying only the recovery of a part of the tax assessed and stated therein that he had looked into the assessment order and the grounds of appeal as also the stay application: Held, that under the third proviso to section 11(3) of the Act, the Additional Commissioner must record reasons for rejecting an application for stay of recovery of the amount of tax. The fillin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay in the disposal of appeals by the Appellate Tribunal. It is needless to point out that the power of stay by the Tribunal is not likely to be exercised in a routine way or as a matter of course in view of the special nature of taxation and revenue laws. It will only be when a strong prima facie case is made out that the Tribunal will consider whether to stay the recovery proceedings and on what conditions, and the stay will be granted in most deserving and appropriate cases where the Tribunal is satisfied that the entire purpose of the appeal will be frustrated or rendered nugatory by allowing the recovery proceedings to continue during the pendency of the appeal. 6.. In the matter of V.N. Purushothaman v. Agrl. Income-tax Officer [1984 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ink that the court sits in judgment not only on the correctness of the decision-making process but also on the correctness of the decision itself. 7.. In the matter of Kishan Lal v. Union of India [1998] 230 ITR 85 (SC) where the matter was involved with regard to section 220(2A) of the Incometax Act, 1961, for reduction/waiver of interest, it was observed: ..............Even though in the said sub-section it is not stated that any reasons are to be recorded in the order deciding such an application, it appears to us that it is implicit in the said provision that whenever such an application is filed the same should be decided by a speaking order. Principles of natural justice in this regard would be clearly applicable.......... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 8,26,739 was brought to the notice of the appellate authority or not. If this fact has been brought to the notice of the appellate authority, then the assessee would not have been required to make the payment of 50 per cent of the demand. The order which has been passed also does not contain any reason to show that the mind was properly applied. In other words, it cannot be considered to be a speaking order. Normally in a matter of discretion, this Court will not interfere in such an order except where the judicial review is necessary in the interest of justice. If the reasons are not recorded in the order or there is no proper application of mind that are the factors which could be considered by this Court. Accordingly, annexure G is q ..... X X X X Extracts X X X X X X X X Extracts X X X X
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