SHETHNA, J. - (1.) FOR the assessment year 1992-93, re-assessment order dated 28. 7. 99 was passed by the respondent Department alongwith the penalty (Annex. 1) which was served upon the petitioner company on 12. 8. 99. Regular statutory appeal was filed against the impugned order at Annex. 1 by the petitioner company before the respondent no. 2, Deputy Commissioner (Appeals), Commer-cial Taxes, Kota on 3. 9. 99 alongwith stay application praying that the recovery proceedings be kept in abeyance till the disposal of the appeal. As the Department was trying to recover the amount demanded, the petitioner company requested the appellate authority on 6. 9. 99 for expediting earlier hearing on its stay application. Hearing of the same was kept on 8. 9. 99 at Jaipur as the post of Deputy Commissio-ner (Appeals), Commercial Taxes, Kota was lying vacant and the charge of the same was hold by the Deputy Commissioner (Appeals), Commercial Taxes, Jaipur. On 8. 9. 99, the appellate authority except fixing the date of hearing on 29. 9. 99 no order was passed on stay petition (Annex. 3 ).
(2.) AGGRIEVED of that order at Annex. 3, the petitioner company filed an appeal before the Rajasthan Taxe Board, Ajmer and prayed for stay against the recovery of demand in question till the final disposal of the main appeal. The said appeal alongwith other appeals were dismissed as not maintainable in absence of any order having been passed in terms of Section 85 of the Rajasthan Sales Tax, Act. Hence, the present petition. Learned counsel Shri Rajendra Mehta for the petitioner vehemently submitted that when the appellate authority fixed the hearing of the appeal on 22. 9. 99 at the time of the hearing of stay application without passing any further order on it, the appellate authority should have decided the appeal on 22. 9. 99 itself. Instead of that, the matter was allowed to stand adjourned on the ground of appointment of Govt. Advocate and the matter was kept on 18. 11. 1999. The appeal could not be heard on that day also i. e. on 18. 11. 1999 and the appeal is kept for hearing on 30. 12. 1999. He submitted that the petitioner company is always ready and willing to go on with the hearing of the appeal, but on one or the order grounds the matter is adjourned at the instance of respondent State and its officers as no interim order was passed on stay application filed by the petitioner company in appeal and, thereby, the petitioner company is suffering irreparable loss and compelled to approach this Court by way of this petition. He submitted that the appellate authority be directed to dispose of the appeal at the earliest and till then the recovery of the demand may be stayed. He also submitted that on 22. 9. 1999, on behalf of the petitioner company, application was moved before the first appellate authority for hearing of its stay application as appeal could not be heard on 22. 9. 1999. But, the appellate authority did not pass any order on that application. He, therefore, submitted that either the first appellate authority may be directed to pass any order on the stay application or decide the appeal at the earliest and till then the recovery be stayed. From the impugned order at Annex. 3 dated 8. 9. 99 passed on stay application one thing is certainly clear that the arguments were heard on stay application by the appellate authority and no stay was granted and only order regarding fixing early date of hearing of appeal was passed and accordingly the appeal was kept on 22. 9. 99. Thus, interim relief as prayed for in stay application was not granted in favour of the petitioner company and only order passed by the first appellate authority was to the effect that hearing of the appeal was kept on 22. 9. 99. It is true that as per the averments made in the petition, twice hearing of the appeal stood adjourned on account of request being made by the respondents. However, I am of the opinion that in such cases the petitioner should have strongly objected abut the adjournment of hearing of appeal when no interim order was passed in favour of the petitioner company by the first appellate authority on the stay application filed by it. The request to grant stay till the appeal is decided by directing the first appellate authority to hear and decide the appeal as early as possible cannot be accepted for the simple reason that if such order is passed the petition is allowed without hearing the other side.
(3.) WHEN the hearing of the appeal is kept on 30. 12. 1999, therefore is no reason for this Court to believe that the appeal may be adjourned without any rea-sonable ground by the first appellate authority. In my considered opinion, the first appellate authority has decided the petitioner's stay application by the impugned order at Annex. 3 and refused to grant any interim order in favour of the petitioner company while fixing the early date of hearing on 22. 9. 99. It amounts to refusal of stay order and when the first appellate authority has not thought it fit to grant any interim order on stay application then, in my opinion, this Court cannot entertain such petition against such order in its jurisdiction under Article 226/227 of the Constitution of India. To grant or refuse interim relief in case of taxes is a discretion of the first appellate authority, which could not be interfered by this Court in its powers under Article 226/227 of the Con-stitution of India. If the petitioner's appeal is allowed then certainly the petitioner would be entitled to get back the entire amount which is recovered from it. But, till the appeal is finally decided, in my opinion, the petitioner company is liable to pay or deposit the amount demanded as per the re-assessment order at Annex. 1. Before parting, I must state that the financial condition of the State is kn-own to one and all. If the Court interferes in such type of cases then practically it will be impossible for the State to run its administration. In my considered opinion, the Court should be slow in interfering with such type of cases. ;