TMI Blog1962 (9) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Assistant Commissioner impleaded as the second respondent. The first respondent is the Deputy Commercial Tax Officer, Tiruvannamalai. The petitioner is a dealer in fried grams. In respect of the year 1960-61, his taxable turnover under the Madras General Sales Tax Act, 1959, was estimated by the Deputy Commercial Tax Officer, Tiruvannamalai, at Rs. 1,90,063-94 and tax and penalty of Rs. 3,801-28 and Rs. 2,844 respectively have been levied. The petitioner has preferred an appeal to the Appellate Assistant Commissioner of Commercial Taxes, Salem, against the said order of assessment. He disputes the levy of tax to the extent of Rs. 2,229-30 and objects to the levy of penalty. In all the total amount disputed in the appeal is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was holding a higher rank administratively. The Deputy Commissioner by his order dated 30th June, 1962, refused to interfere with the order of the Appellate Assistant Commissioner. He observed thus: "The petitioner is informed that the Appellate Assistant Commissioner's order relating to stay is final and that the Deputy Commissioner cannot interfere with it." The petitioner next filed a petition dated 7th July, 1962, to the Commissioner of Commercial Taxes. But there was no favourable response. It is in these circumstances that the above writ petition has been preferred by the petitioner in this Court. The petitioner's grievance is that his application for stay has been arbitrarily rejected, and that therefore the Appellate Assistant Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the manner in which the security bond has to be executed. It is clear, therefore, that there is ample power in the Appellate Assistant Commissioner to grant stay of collection of tax and penalty in such manner as he likes during the pendency of the appeal before him. Though sub-section (5) of section 31 only uses the word "tax" it is obvious that the levy of penalty is also included in that expression. Section 25 of the Act states that any penalty payable under the Act shall be deemed to be tax under the Act for the purpose of collection and recovery. Now the question is whether the Appellate Assistant Commissioner has properly exercised his statutory function in rejecting the application for stay quite summarily. Reference may be made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not exercised his duty for one or other of the aforesaid reasons, it will compel the authority to discharge his duty, or, to put it differently, to exercise his discretion honestly and objectively." Section 31(5) of the Madras General Sales Tax Act, 1959, is of the same pattern as the proviso to section 45 of the Income-tax Act extracted above. Undoubtedly the Appellate Assistant Commissioner has discretion to stay the collection of tax pending the appeal on such terms as he thinks fit if the appellant furnishes security to his satisfaction. It is however wrong to assume that the exercise of the discretion is only a naked arbitrary power to reject the application for stay of recovery of tax pending the appeal. The appellate authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution is plainly available to compel a public officer to discharge his statutory duties. If he overlooks a provision of law or is under a misapprehension of his duties, he can be corrected and directed to proceed in the proper legal way. Where a Tribunal shuts its ears to the application made to it or brings to bear on it a mind foreclosed to reason, it must be deemed to have failed to exercise its discretion and a mandamus can issue ordering it to hear and determine the application. This is well settled law and needs no citation of authorities to support it. It seems to me that in the present case there has been no proper disposal of the application for stay by the Appellate Assistant Commissioner. The petitioner has submitted a s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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