9911796707
TMI Blog2001 (11) TMI 987X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 13,91,512, on the application for stay filed by the petitioner, annexure "B". 2.. The petitioner is a dealer. The assessments for the year 199798 for Besta Cosmetics Ltd., and the petitioner were concluded by the second respondentassessing authority levying tax on the turnover of "Promise" toothpaste and toothpowder sold by Besta Cosmetics Ltd. (for short "BCL") to the petitioner as the first sale liable for tax under the Karnataka Sales Tax Act, 1957 (for short, "the Act") and the very same turnover was assessed to tax in the hands of the petitioner also, as first sale on the ground that the said turnover relates to sale of branded goods. The petitioner being the brand owner is liable for tax under the third proviso to section 5(3)(a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, the material facts in the case on hand. The counsel says that BCL and the petitioner could not be held to be the first sellers in terms of section 5 of the Act. 6.. Per contra, Sri Vedamurthy, learned Government Counsel states that the order imposing 50 per cent cash and 50 per cent bank guarantee is strict, in accordance with law. He refers to the proviso under section 20(3)(b) in this regard. He says that a discretionary order need not be interfered in the case on hand. 7.. After hearing the counsel, I have carefully perused the material placed before this Court. The petitioner, aggrieved by the order of the assessing authority, has preferred an appeal before the Joint Commissioner of Commercial Taxes in terms of annexure "B". ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to its satisfaction in such form and in such manner as may be prescribed." 9.. Sri Vedamurthy, Government Advocate, strongly relies on the proviso to sustain the order. I have carefully perused the said provision. It provides for a discretion with regard to the payment of tax and with regard to the furnishing security to the satisfaction. Discretion does not mean mechanical order of 50 per cent cash and 50 per cent bank guarantee by the authorities. The authority has to apply its mind to the material facts and apply the relevant laws and thereafter, apply its discretionary powers with regard to the case placed before the appellate authority. No such attempt is made in the case on hand. To say the least, the discretion is exercised me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he officer feels that the stay would put the realisation of the amount in jeopardy, that would be a cogent factor to be taken into consideration. The amount involved is also a relevant factor." 12.. This Court in the case of Sudarshan Pine Products (P) Ltd. v. Additional Deputy Commissioner of Commercial Taxes (Assess ments)I, Bangalore Division, Bangalore [1998] 111 STC 740 has ruled as under: ".............It is evident that the Joint Commissioner while hearing and disposing of the stay application has to exercise his discretion in a judicious manner. He has to record the reasons if the application is not accepted or partly accepted. This is beside the fact that proper opportunity of hearing has also to be given. It is true that stay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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