TMI Blog1989 (4) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... and 1982-83. In the meanwhile, the assessing authority has issued a certificate to the Tahsildar for recoveries, to recover the entire tax in dispute, pursuant to which the Tahsildar has now issued notice of recovery under rule 112 of the Land Revenue Rules. 3.. It is the case of the petitioner that immediately after the notice of assessment was served on him, appeals were filed for both the years within time before the Deputy Commissioner of Commercial Taxes (Appeals), Bangalore (second respondent) accompanied by applications for stay. The tax disputed in the appeals filed by the petitioner before the second respondent for the two years in question is Rs. 76,843.43 which is the subject-matter before the appellate authority. The petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s it may think fit as regards the payment of tax, namely, the tax disputed in the appeal. 6.. In all the cases which have come up before me by way of writ petitions in which recovery proceedings are challenged in most of the cases the Deputy Commissioners have not passed any order on the stay applications and simultaneously steps to recover the disputed tax through the Tahsildar, are taken. The inaction on the part of the Deputy Commissioners in all these cases has to be construed as failure to perform the statutory duty which is coupled with discretion and deferring the making of such orders on the stay applications has resulted in frustrating or defeating the very right of appeal. In this context, the observations of Shah, J., in L. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred is for the purpose of effectuating a right there may be a duty cast upon the donee of the power to exercise it for the benefit of those who have that right when required on their behalf". The observations of Shah, J., and the Law Lords in Julius v. Bishop of Oxford (1880) 5 App Cas 214 are very apposite to the facts of these cases where the Deputy Commissioner of Commercial Taxes is vested with the discretion to exercise powers as an appellate authority in the matter of stay of demand which is in dispute in the appeal before him, on such conditions as he may deem fit to impose. This Court is flooded with large number of writ petitions wherein similar recovery proceedings taken by the Tahsildar for recovery of the disputed tax even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th Schedule to the Karnataka Sales Tax Act. No doubt, the assessee himself is to be blamed for the ex parte order of assessment made against him, but the reasons put forward for failure to produce the books of accounts in support of his claim for exemption are a matter on which the Deputy Commissioner has to adjudicate in the appeal. It is the obligatory duty of the Deputy Commissioner to appreciate the facts of the case in order to find out whether the appellant has a prima facie case on merits, and whether it warrants exercise of his discretion either to stay the entire demand or to put the appellant on terms. The inaction or failure on the part of the Deputy Commissioner of Commercial Taxes in not making any order on the stay applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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