V. K. SINGHAL, J. - (1.) THIS writ petition has been filed against the order of the Additional Commissioner (Anti-Evasion), Commercial Taxes Department, Rajasthan, Jaipur, dated January 3, 1994, wherein the stay under the provisions of the Rajasthan Sales Tax Act, 1954 (for short, "the Act") was partly granted and in respect of tax demand of Rs. 2,19,791 the stay was rejected. Learned counsel for the petitioner submits that the order passed by the Additional Commissioner is not a speaking and reasoned order and it has been passed without application of mind.
(2.) IN respect of the assessment year 1988-89 while finalising the assessment under section 10 of the Act the Assistant Commissioner, Commercial Taxes (Anti-Evasion), Jaipur, has created a demand of Rs. 8,22,983 vide his order dated September 3, 1993. The assessee filed an appeal against the order and during the pendency of the appeal an application was made to the Additional Commissioner for grant of stay. The Additional Commissioner in his order dated January 3, 1994, observed that he has gone through the assessment order, grounds of appeal and relevant facts in connection therewith and decided the stay application. The recovery of penalty and interest was stayed on the condition of making the full payment of tax immediately. Learned counsel for the petitioner has tried to raise certain objections on merits which I do not consider appropriate to take into consideration for the disposal of this writ petition while examining the scope of proviso to sub-section (3) of section 11 of the Act. I am not in agreement with the contention of the learned counsel for the petitioner. The provisions of section 11 (3) are as under : " 11 (3) : In default of the payment of tax payable under sub-section (1) or sub-section (2), the amount of tax shall be recoverable as an arrear of land revenue : Provided that where an assessee has presented an appeal under section 13, the Commissioner, or the Deputy Commissioner (Administration) subject to such limits and conditions as may be prescribed in this behalf may on an application in writing from the assessee, stay the recovery of the disputed amount of tax or any part thereof, during the pendency of the appeal if the assessee furnished sufficient security to his satisfaction in such form and in such manner as may be prescribed : Provided further that where recovery of tax or any part thereof is stayed under the preceding proviso, the amount of such tax shall be recoverable with interest at the prescribed rate on the amount ultimately found due; and such interest shall be payable on such amount from the date the tax first became due : Provided also that the Commissioner or the Deputy Commissioner (Administration) shall, before rejecting an application under the first proviso, give the applicant, a reasonable opportunity of being heard, and shall also record reasons for such rejection. " According to the scheme of the Act the assessment is to be made by the Assistant Commercial Taxes Officer, Commercial Taxes Officer and Assistant Commissioner, Commercial Taxes. An appeal lies to Deputy Commissioner of Commercial Taxes (Appeals) under section 13 of the Act. Second appeal against the order of the Deputy Commissioner (Appeals) lies to the Sales Tax Tribunal under section 14 of the Act. Against such an order passed in that appeal revision lies to the Rajasthan High Court under section 15. The appeal to the Sales Tax Tribunal is only in respect of the order specified under section 14. Under section 15-A, the Commissioner has the powers suo motu of revision against the order passed by the Commercial Taxes Officer or Assistant Commercial Taxes Officer if the same are prejudicial to the interest of Revenue. If no second appeal lies to the Tribunal against the order passed by the appellate authority under section 13 then also on his own motion or on application by the aggrieved person revision lies to the Commissioner. From the purview of these provisions it is evident that the Commissioner is also acting as revisional authority against certain orders passed by the Deputy Commissioner (Appeals ). Though, the powers which have been conferred under the proviso to sub-section (3) of section 11 of the Act cannot be considered purely as administrative powers, but they are quasi-judicial in nature as in accordance with the third proviso to sub-section (3) of section 11 of the Act the applicant has to be given reasonable opportunity of being heard and the reasons are also to be recorded for rejection of the application. In other words, for accepting the application neither the reasons are required to be recorded nor any opportunity of hearing is required. The dispute is with regard to the requirement of reasons which are to be recorded and which has been challenged by the learned counsel for the petitioner. For the purpose of grant of stay the Commissioner under the proviso to section 11 (3) of the Act is required to see the prima facie case, balance of convenience and irreparable loss. Though for the purpose of prima facie case he has to take into consideration the possibility of success in appeal, but it cannot be expected that the Commissioner exercises his powers under section 11 (3) in a manner so as to make the appeal itself as nugatory or infructuous by observing the merit and demerit of the case. The Commissioner is not to adjudicate on merit as to whether the applicant is entitled for relief in accordance with law or on the basis of evidence produced or even to discuss the merits of the case in the stay order. He has to see prima facie case whether there is possibility of the success in appeal without discussing, agreeing or disagreeing with the contention of the learned counsel for the petitioner. If any observation is made on merits it affects the decision of the Deputy Commissioner (Appeals), who is subordinate to him. Though the observations made while disposing of the stay application under section 11 (3) cannot be said to be binding on the appellate authority but in the practice they may affect the mind of the appellate authority and therefore the words "record reasons" used in the third proviso to sub-section (3) of section 11 of the Act contemplate recording of reasons with regard to the grant of stay, namely prima facie case, balance of convenience or irreparable loss, and not on merits of the appeal. The order which has been passed in the present case clearly mentions that the Additional Commissioner has applied his mind not only to the grounds of appeal but also to the relevant facts and various argument raised before him. This shows the application of mind by the Additional Commissioner and it cannot be said that the order has been passed without application of mind. This Court in the case of Bhanwar Lal Jain v. State of Rajasthan [1980] 45 STC 92 has observed that the Additional Commissioner might be having certain reasons in his mind while allowing the petitioner's application for stay in part, but the mandate of law is that the reasons must be recorded and it was said that it was obligatory on the part of the Additional Commissioner to record reasons for rejecting the petitioner's prayed for stay of recovery of the whole amount of tax. Another important point which has to be taken into consideration is that in accordance with the provisions of section 23 of the Act now the assessee is entitled to interest for the refund of the amount at the rate of 15 per cent per annum from the date of deposit and thus if any amount has been deposited in excess the applicant is entitled for the interest from the date of the deposit till the date of actual payment. The provisions of interest have been held to be automatic and thus the Legislature has safeguarded the interest of the person in case any amount deposited is ultimately found to be not payable. Reliance has been placed on the case of Vishnu Traders v. State of Haryana 1993 STI 23 (SC) wherein it was held that in the matters of interlocutory orders principles of binding precedents cannot be said to apply. However, the need for consistency of approach and uniformity in the exercise of judicial discretion respecting causes and the desirability to eliminate occasions for grievances of discriminatory treatment requires that all similar matters should receive similar treatment except where factual difference require different treatment so that there is assurance of consistency, uniformity, predictability and certainty of judicial approach. Thus from a perusal of the order passed by the Additional Commissioner, I am of the view that the said order cannot be said to be without application of mind. The reasons which are to be recorded are in regard to prima facie case, balance of convenience and irreparable loss which in the facts and circumstances of the case the Commissioner has to record while rejecting the application.
(3.) IN the case of Bhanwar Lal Jain [1980] 45 STC 92 (Raj) the stay application was partly rejected and the order was a cyclostyled one. Directions were given that the matter would be heard by the Additional Commissioner and till then no coercive process of recovery was to be employed. IN these circumstances, it is directed that the petitioner would appeal before the Additional Commissioner on February 3, 1994 and the Additional Commissioner will provide him reasonable opportunity of hearing and if he is of the view that no prima facie case, balance of convenience or irreparable loss is made out, he may reject the application by recording the reasons to that effect without observing anything on the merits of the case. If he is satisfied that the petitioner has prima facie case, balance of convenience and irreparable loss then he may grant the stay and he will also be free to grant stay in part and in that case in respect of the amount for which stay is not granted the three ingredients mentioned above will be required to be recorded in the order. Learned counsel for the respondents raised objection that the writ petition is not maintainable since the appeal is pending, but I am of the view that the writ petition could be entertained only with regard to the legality of the order passed by the Additional Commissioner and the matter on merits which is pending before the appellate authority cannot be considered even in writ jurisdiction in such a situation. No coercive steps should be taken for the recovery of the amount till February 3, 1994. There would be no necessity to issue notice to the petitioner for hearing before the Additional Commissioner on February 3, 1994. Consequently, the writ petition stands disposed of in accordance with the directions given above. Writ petition disposed of accordingly. .;