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TMI Blog1983 (11) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... ealise the amounts due to them and repay the amount advanced. In those circumstances, although they were assessed to pay sales tax on their turnover, they were not in a position to pay the same. In respect of the turnover relating to the assessment years 1980-81 and 1981-82, they made representations to the Commissioner of Commercial Taxes and to the Government to permit them to pay the tax in instalments. The Government, in its Memorandum No. 2771/S1/81-4 dated 22nd July, 1982, while forwarding the representations to the Commissioner of Commercial Taxes, requested him to allow the petitioners to pay the arrears of sales tax relating to 1980-81 and 1981-82 due as on 1st July, 1982, in six half-yearly equal instalments commencing from August, 1982. The Commissioner of Commercial Taxes, in turn, forwarded the memorandum of the Government and the representations forwarded to him by the Government to the Deputy Commissioner of Commercial Taxes through his letter No. LIII(1)3365/81 dated 26th July, 1982, for taking necessary action to realise the arrears of sales tax relating to 1980-81 and 1981-82 in six half-yearly equal instalments commencing from 1st August, 1982. The Deputy Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Tax Officer constitutes an order within the meaning of section 16(2), then the petitioners have a right to pay the amount of tax assessed in instalments, for that order of the Deputy Commissioner has not been revised or set aside by any superior authority under the Act. In paragraph 6 of the counter-affidavit filed on behalf of the Government, it is stated: "The matter of giving instalments raised a public controversy and it was a subject-matter of discussion in Andhra Pradesh Legislative Assembly and the then Chief Minister assured the House that the matter would be reviewed. Accordingly, the matter was examined by the Government and the Government came to know that the writ petitioners collected taxes from the public and retained the same without payment to the State to which it is due. There was adverse impression in the public on the grant of instalments. Further the Government has no power under the Act to give instalments. In view of this, the Government issued instructions withdrawing the grant of instalments, as their earlier orders for granting of instalments is contrary to the provisions of section 16(2) of the Andhra Pradesh General Sales Tax Act................." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directions of the Government. The present order contained in the form of a letter addressed by the Deputy Commissioner to the Commercial Tax Officer is based on a memorandum issued by the Government and not upon a consideration of the facts of the case by the Deputy Commissioner. Before we consider these objections, we may notice that sub-section (2) of section 16 empowers the Deputy Commissioner to permit, by general or special order, the payment of any tax assessed under the Act in two or more instalments within such intervals as may be specified in the said order. That provision does not require any application to be made by the dealer; nor does it envisage any particular form in which the order should be made. It merely empowers the Deputy Commissioner to make an order permitting the payment of tax in two or more instalments. It does not specifically require any reasons to be recorded. The Deputy Commissioner, having regard to the general conditions of trade and commerce prevalent in any particular year, may make even a general order which need 'not be with reference to any individual assessee. If, having regard to the general conditions of trade and commerce relating to prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t accrued to them or that it is a mere administrative order which can be withdrawn at any time. The question whether or not the Government has jurisdiction over the matter is, in our opinion, beside the point. When, on receipt of the representations and the Memorandum of the Government, the Deputy Commissioner, who admittedly has jurisdiction over the matter, has directed the recovery of the arrears of sales tax in instalments, that, in our opinion, constitutes an order under section 16(2) and is binding on the authorities, unless it is varied or set aside in accordance with law. Admittedly, that order has not been set aside or varied by the competent authority. The tax is sought to be collected in lump sum on the instructions of the Government; but those instructions are not envisaged by any provisions of the Act and therefore cannot be acted upon. The right accrued under section 16(2) cannot be taken away in this manner. Mr. Venkataramana, the learned Government Pleader, however, contended, relying upon a judgment of the Supreme Court in Purtabpur Co. Ltd. v. Cane Commissioner, Bihar AIR 1970 SC 1896, that where the Government, without jurisdiction, directs a particular authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commercial Tax Officer, while retaining the representations with him. The order of the Deputy Commissioner is clearly a direction to the subordinate authorities to realise the arrears of sales tax in instalments. When that order satisfies all the ingredients of section 16(2), the mere fact that some other authority also opined in the same manner does not make it any the less an order under section 16(2). We have, therefore, no hesitation in holding that the instructions of the Government directing collection of the arrears of sales tax in lump sum are wholly without jurisdiction and illegal. The petitioners are entitled to pay the arrears of sales tax in instalments as ordered by the Deputy Commissioner on 3rd August, 1982. Lastly, it was contended that since the petitioners have collected sales tax from the purchasers, these are not fit cases in which this Court should exercise its extraordinary jurisdiction under article 226 of the Constitution in favour of the petitioners. We are not, however, impressed by this argument for the simple reason that the order made under section 16(2) is a quasi-judicial order and once it has become final, it must be honoured by everyone and where ..... 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