LAKSHMI VENKATA SESHA SAI OIL CO Vs. COMMERCIAL TAX OFFICER II KURNOOL

JUDGEMENT

(1.) Hard the learned Government Pleader.

(2.) In this writ petition, the question that falls for consideration is whether, under section 19(2-C) of the Andhra Pradesh General Sales Tax Act, the Joint Commissioner of Commercial Taxes is bound to make an order on merits of the stay petition for continuing the stay granted by the first appellate authority pending the disposal of an appeal before the Sales Tax Appellate Tribunal. The case of the petitioner is that, while the appeal was pending before the appellate authority, the Deputy Commissioner (Appeals) had granted stay. The appeal was ultimately dismissed. The assessee carried the matter in appeal to the Sales Tax Appellate Tribunal. Under section 19(2-C), the stay granted by the Deputy Commissioner (Appeals) would continue only in a case where the Joint Commissioner, on an application made to him by the dealer in the prescribed manner, makes a specific order to that effect. The dealer made an application in this behalf. The Joint Commissioner, however, after referred to the fact that the dealer had preferred an appeal before the Sales Tax Appellate Tribunal, observed :

(3.) With that observation, he rejected the stay petition. In other words, the Joint Commissioner refused to exercise his discretion one way or the other after considering the merits of the stay petition and directed the dealer to move the Sales Tax Appellate Tribunal before whom the appeal has been filed. The Joint Commissioner (Legal), in considering an application of a dealer under section 19(2-C) for continuance of the stay pending disposal of the appeal before the Sales Tax Appellate Tribunal, exercises a quasi-judicial function imposed by the statute. The fact that the Sales Tax Appellate Tribunal, before whom the appeal is pending, is also competent to either grant or refuse the request of the dealer for stay of the recovery of tax pending disposal of the appeal, does not absolve the Joint Commissioner from discharging the statutory duty cast upon him under section 19(2-C) of the Act. A dealer is given by the statutes the right to move the Joint Commissioner under section 19(2-C) for continuance of the stay. If it is allowed, the dealer is not obliged to further move the Sales Tax Appellate Tribunal; but, if it is rejected, he is given by the stature a further right to move for stay before the Sales Tax Appellate Tribunal. Merely because the dealer had field an appeal before the Sales Tax Appellate Tribunal, the Joint Commissioner cannot refuse to consider the application on merits. He has to discharge his statutory duty. Inasmuch as the only reason given by the Joint Commissioner in passing the impugned order is that the dealer may move the Sales Tax Appellate Tribunal, we hold that the Joint Commissioner has failed to exercise the jurisdiction vested in him under section 19(2-C). In that view of the matter, we set aside the impugned order and direct the Joint Commissioner to consider the application on merits and pass such orders as he thinks fit and pending disposal of the said application, direct that there shall be stay of the recovery of tax for the month of April, 1982.