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TMI Blog2002 (5) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner should be given proper opportunity. He had referred to various decisions to which we shall refer at the appropriate stage. He then contends that since the order rejecting the stay cannot be sustained the subsequent action taken under section 226(3) of the Income-tax Act for resorting to garnishee proceeding can also not be sustained. He has also challenged the validity of the search and seizure under section 132 on the ground that the ingredients on the basis whereof section 132 can be resorted to, have not been satisfied. Submission on behalf of the respondents Mr. Ghosh, on the other hand, points out that so far as the search and seizure is concerned, no interim order could be granted. It is a matter to be decided on appeal. So far as section 226(3) is concerned, the power is conferred on the respondent to resort to such proceeding, if the demand is not stayed and there is a default on the part of the assessee or stay was refused. Therefore, there is no absence of jurisdiction in resorting to section 226(3). According to him, the order has already taken effect and as such the same cannot be stayed. The other contention he has raised is that so far as section 220 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lated under sub-section (6) of section 220. The giving of opportunity of section 158BC is in relation to the assessment. It has nothing to do with the questions which arise after the assessment is made. The situation contemplated under sub-section (6) of section 220 is a situation where assessment is made and the demand is to be stayed. It is completely a different consideration. Therefore, when a discretion is conferred upon such an officer and when he is called upon to exercise such discretion judiciously, it is implied that if any application is made, the same is to be decided judiciously. Since it relates to a right which the asses see can invoke by invoking section 220(6), then it implies that he should be given an opportunity of hearing, which is implicit in the provision itself. Therefore, the reason, on which the right was refused as given by the Asses sing Officer in the impugned order, cannot be sustained. The discretion is to be exercised having regard to the facts and circumstances of the case as to whether the demand is to be stayed or whether what condition is to be imposed. Such a question can be decided only after opportunity is given to the assessee, who will be af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etionary power vested, even in the executive, is to be exercised in a just, reasonable and fair manner. This is the essence, the rule of law, as was held in Aeltemesh Rein v. Union of India [1988] AIR 1988 SC 1768, 1771. Such discretion is to be exercised judiciously and not arbitrarily depending upon the facts and circumstances of each case (Jagdish Singh v. Lieutenant Governor, Delhi [1997] AIR 1997 SC 2239, 2243). The discretion is to be exercised with circumspection, consistent with justice, equity and good conscience, keeping always in view the given facts and circumstances of the case (Hindalco Industries Ltd. v. Union of India [1994] 2 SCC 594, 599). When a statute confers a power, it pre-supposes that it was conferred to achieve some object. Such power, therefore, is to be exercised for achieving the object. Such authority while exercising such power is to be guided by a consideration as to whether such exercise would advance the object sought to be achieved by the enactment. As soon as such power is vested in an authority, it is implicit therein that such power is to be exercised reasonably and in a reasonable manner for the purpose for which it was conferred Wood Polyme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is granted, though, it may not be the primary concern. In Siemens Engineering and Mfg. Co. of India Ltd. v. Union of India [1976] AIR 1976 SC 1785; Travancore Rayons Ltd. v. Union of India [1971] AIR 1971 SC 862; Associated Tubewells Ltd. v. R. B. Gujarmal Modi [1957] AIR 1957 SC 742, it was held that the order should ex facie disclose the reason for decline or grant of stay and that such exercise of discretion is a quasi-judicial function and, therefore, it has to be exercised fairly and reasonably and not arbitrarily or capriciously. Since the power is quasi-judicial in nature, it implies that an opportunity is to be given to the assessee when it seeks to invoke such discretion. The opportunity of hearing is implicit in the provision. Support may be drawn from the decisions cited above. In Mool Chand Mahesh Chand v. CIT [1978] 115 ITR 1 (All) and Mrs. N. Savithri Sam v. ITO [1969] 72 ITR 730 (Mad), it was held that such exercise of discretion is a quasi-judicial function. Relying on the case of Dwarka Prosad Agarwalla v. Director of Inspection [1982] 137 ITR 456 (Cal), Mr. Bhattacharya submitted that section 132 was under consideration. But the same cannot be gone into at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccording to his discretion. In view of the above order, the garnishee proceeding, however, shall remain stayed and the amount demanded in respect of the respective account, if not already withdrawn, shall remain attached until a fresh order is passed by the Assessing Officer in respect of the stay of the demand. He will pass fresh order if he so needs with regard to the garnishee proceedings, as he may deem fit and proper, or the garnishee proceedings shall remain in abeyance to that extent which shall be subject to the result of further order that may be passed by the Assessing Officer. This writ petition is, thus, disposed of in so far as the question of stay and garnishee proceeding is concerned. However, it will proceed with regard to the question relating to section 132 after the affidavits are exchanged. Affidavit-in-opposition is to be filed by June 17, 2002, reply, if any, by June 24, 2002. Let the matter appear on June 24, 2002. The pendency of this writ petition, in relation to the question under section 132 before this court, will not prevent the appellate authority from disposing of the appeal, in the mean time, in accordance with law. The appellate authority sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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