TMI Blog1987 (3) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... emand raised by the learned Sales Tax Officer is very high.............." (underlining* is mine) But, inasmuch as the merits of the case would be considered at the time of hearing, he directed that if the petitioner paid Rs. 50,000 by 17th March, 1987, and produced proof of payment before the concerned assessing officer, the balance amount would be stayed till the disposal of the first appeal. 3.. The learned counsel for the petitioner has invoked our extraordinary jurisdiction in the peculiar facts and circumstances of the case, namely, where the entire turnover of the petitioner comprised of inter-State sales and is not liable to Orissa sales tax at all and especially, when the Commissioner upon perception of the contentions of the counsel for the petitioner finds force therein and furthermore, also holds that the demand raised by the learned Sales Tax Officer is very high, it was unjust on the part of the Commissioner to refuse the prayer for stay. No part of the turnover of the petitioner was exigible to Orissa sales tax. Despite perception of the said aspect, it was an illegal exercise of jurisdiction on the part of the Commissioner in whom the State has vested the power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the writ application. As per the High Court Rules, for making such a prayer a separate application is to be filed and registered as a miscellaneous case. When I called upon Mr. Roy to explain if he wants any interim relief, he clearly submitted that he does not want any interim relief during the pendency of the writ application and wants disposal of the writ application which has been filed invoking the power of superintendence under article 227 of the Constitution of India. For exercising the power of superintendence, the records are necessary. The learned Standing Counsel for the department who had been served with a copy of the writ application does not even possess the copy of the writ application since he did not have notice that the matter would be taken up today. However, in view of our request, he agreed for final disposal of the writ application today. In the circumstances, we have decided to hear the application and dispose of the same as prayed for by the petitioner. 8.. In the writ application, stay has been prayed for on the ground of nonliability of the petitioner and absence of jurisdiction of the assessing officer. Both the questions can be decided in the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner and the Commissioner has also taken into consideration the circumstances and has granted stay of realisation on condition that Rs. 50,000 would be deposited, I am not able to accept that this is a fit case where the Commissioner's order is to be set aside on the ground of infirmity. 11.. Even if the order of the Commissioner is liable to be set aside, this Court is to direct the Commissioner to examine the question in the guidelines for stay indicated by the Supreme Court in several decisions. Where the Commissioner would not observe the guidelines in spite of the same being brought to his notice, the question of interference in a writ application would arise if interest of justice would demand the same. 12.. In the result, I am satisfied that this is not a fit case for interference. The writ application is dismissed. 13.. Inasmuch as we have differed, the matter be placed before Honourable B.K. Behera, J., for disposal of the matter by a third Judge. G.B. PATNAIK, J.-The assessee is the petitioner challenging the order of the Commissioner in revision who by the impugned order directed the petitioner to pay a sum of Rs. 50,000 out of the assessed amount of Rs. 2,29,4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of Mr. Roy for the petitioner that the Orissa sales tax may not be leviable. In fact, the learned Additional Commissioner of Sales Tax was quite aware of this position and that is why he has reduced the quantum by directing only to pay a sum of Rs. 50,000 out of the total amount of Rs. 2,29,458. It is no doubt true that when the Commissioner exercises his jurisdiction in the matter of stay, he has wide discretion over the matter and he has to look to the prima facie nature of the case as well as the balance of convenience for grant or refusal of stay. But that discretion is undoubtedly a judicial discretion and not an arbitrary one. If the Commissioner was satisfied that Orissa sales tax was not leviable in respect of the transaction in question, there was no bar for granting relief of stay to the extent of full amount in favour of the assessee while the appeal was pending before the Assistant Commissioner, till the disposal of the first appeal. Normally, in a writ petition if this Court interferes with an order of stay, the matter should be remitted back to the Commissioner for reconsideration. My learned brother Justice S.C. Mohapatra while differing with the views expresse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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