TMI Blog1990 (7) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... granting an opportunity to file any affidavit does not arise. Looking at the impugned order, this court finds that the Income-tax Appellate Tribunal, while in seisin of the appeal, has since disposed of a petition filed by the assessee for stay of dues on the ground that the discretionary power vested in the Tribunal should not be exercised unless all the remedies available to the assessee are exhausted. The Tribunal has recorded the submissions of the departmental representative relying upon the decisions reported in Asst. Collector of Central Excise v. Dunlop India Ltd. [1985] 154 ITR 172 (SC) and Empire Industries Ltd. v. Union of India [1986] 162 ITR 846 (SC) urging, inter alia, that the assessee has not exhausted all the remedies avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r may not succeed. This principle of law is not in doubt or in dispute. Every court and/or every statutory authority vested with the discretionary power has to exercise the same judicially. Law is made clear that no exercise of discretion can be made whimsically or arbitrarily. The authority is vested with the power to exercise discretion either in favour of the assessee or against the assessee but the authority cannot say that it shall not exercise the discretion as the assessee has other alternative remedies. It is an aspect not to exercise discretion while finding that there is an alternative remedy. The aforesaid decision does not indicate such a proposition at all. The attention of this court is further drawn to another decision in E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t varies in a connected matter and every court is entitled to pass an interlocutory order in its own wisdom and every discretion must be exercised judicially and not arbitrarily. In the instant case, the Tribunal, in its own wisdom, has relied upon those two decisions as if, in the Department, there are other alternative remedies available to the petitioner and the assessee, without exhausting such procedure, cannot approach the Tribunal to exercise its discretion. The aforesaid decisions do not indicate such a proposition and, with great respect, this court finds that the Tribunal has not properly appreciated the aforesaid two decisions to withhold the exercise of its discretion by holding, inter alia, that the petitioner has other alter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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