TMI Blog1991 (3) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... ,760. As against that order the petitioner preferred an appeal before the Assistant Commissioner (Judicial), Sales Tax, along with an application for waiver or relaxation of deposit of 20 per cent of the tax assessed, required to be deposited before the appeal could be entertained. Sub-section (1-B)(b) of section 9 of the aforesaid Act, inter alia, provides that no appeal against the assessment order shall be entertained unless the applicant has furnished satisfactory proof of the payment of not less than 20 per cent of the amount of tax or fee assessed where some of the returns for the assessment year have not been filed or no return has been filed for such year. The proviso appended to the above provision says: "Provided that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e discretion can be exercised at the whim of the authority or on its private opinion. The object in conferring the discretion on the appellate authority to waive or relax the condition of deposit, is to minimize the rigour of clause (b) aforesaid in hard and suitable cases to the extent that the ends of justice may demand. In every case, where an application is made in that behalf, the appellate authority is expected to apply its mind objectively and to decide on judicial consideration whether a case for waiver or relaxation has been made out or not. The provision is for the benefit of the tax-payer and if a case is made out, the relief cannot be denied only because the power conferred is discretionary. The authority is expected to take a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no merit or the petitioner was rightly assessed to tax, was not a relevant consideration which should have governed the matter in denying the relief for waiver or relaxation. The Tribunal misdirected itself in getting influenced by those considerations. There is nothing in the impugned order to indicate the financial condition of the petitioner and whether the petitioner was in a position to make the deposit required of him. It is well-established that when an authority or court arrives at a decision by considering material which is irrelevant to the enquiry, or taking into account the matters which are partly relevant and partly irrelevant to the question for consideration, then in such a situation the decision as a whole is vitiated fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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