Judgment · High Court · 2012

The present challenge principally centers around the perceived failure on the pa rt of the statutory authorities to act in terms of the second proviso to Section 24 of the Assam Agricultural Income Tax Act, 1939(hereinafter for short referre d to as the Act). According to them, to redress the unwarranted detrimental con sequences due to such omission or failure, remedial intervention of this Court u nder Article 226 of the Constitution of India is called for. We have heard Mr. G.K. Joshi, learned Senior Counsel for the petitioners assiste d by Mr. R.K. Joshi, Advocate and Mr. R. Dubey, learned Standing Counsel, Financ e (Taxation), Department, Govt. of Assam for the respondents. Having regard to the limited issue raised in the instant appeal, it would be per missible to avoid unnecessary factual details. Suffice it to mention that the petitioner is an assessee under the Act and had s ubmitted its return of agricultural income for the assessment years, 1991-92, 19 92-93 and 1994-95, duly before the Agricultural Income Tax Officer, the Responde nt No.2. Eventually, this authority assessed its agricultural income under Secti on 30 of the Act vide his order dated 07.12.2009. Being aggrieved by this assessment, the petitioner preferred appeals before the Deputy Commissioner of Taxes (Appeals), Guwahati for the corresponding assessme nt years, as above and also prayed for stay of the deposit of the resultant dema nd pending disposal thereof. The appeals were under Section 24 of the Act. As t he appellate authority did not consider such prayer, and on 09.02.2011 directed the deposit of the amount of tax with interest as a condition precedent for ente rtainment of the appeals, the petitioner filed a fresh petition reiterating the prayer under Section 31(1) of the Act. This prayer was rejected by the appella te authority by his order dated 05.07.2011. Being still aggrieved by this decis ion, the petitioner next approached the learned Assam Board of Revenue. It havin g dismissed the appeals, the petitioner has approached this Court. Mr. Joshi, has urged with particular reference to the second proviso of Section 24 of the Act that the requirement of deposit of the amount of taxes, penalty or interest assessed having been essentially left to the discretion of the appella te authority, as would be evident from the language employed therein, the Deputy Commissioner of Taxes (Appeals) had failed to exercise his jurisdiction in reje cting the petitioner’s prayer for stay of such deposit without recording any rea son in support thereof. Drawing the attention of this Court in particular to th e words (cid:28)if not otherwise directed by him (cid:29) the learned Senior Counsel has urged that having regard to the construction of the Second proviso as legislatively de signed, recording of reasons in rejecting the prayer for stay of the deposit who lly or partially is mandatory, absence whereof, would vitiate the decision to th at effect. The learned Senior Counsel has therefore urged that both the appella te forum as well as the Assam Board of Revenue having misconstrued the Second pr oviso to Section 24 of the Act, the orders impugned are unsustainable in law and are thus liable to be interfered with. On instructions, Mr. Joshi has urged th at in the facts and circumstances of the case as the appeals on merit are pendin g before the Deputy Commissioner, of Taxes (Appeals), it would be appropriate th at the issue on the grant or otherwise of the prayer for stay of the deposit be remitted to the appellate forum for a fresh consideration in terms of the letter and spirit of the Second proviso of Section 24 of the Act. In support of his c ontentions, Mr. Joshi has placed reliance on the decision of this Court rendered in M/S. PRIYA VART DEWAN SINGH & ORS. Versus THE SENIOR SUPERINTENDENT OF TAXES , GOVERNMENT OF TRIPURA & ORS. (1985) 1 GLR 10. Mr. Dubey, in reply has argued that as the Deputy Commissioner of Taxes (Appeals ), Guwahati has rejected the prayer for stay of the deposit of levy as contempla ted in Second proviso to Section 24 of the Act, the reasons being inbuilt in the decision, it is not necessary to elaborate the same and thus the impugned order s are unassailable. Upon hearing the learned counsel for the parties and on a consideration of the m aterials on record, we however feel inclined to sustain the plea raised on behal f of the petitioner. This is more so, in view of the decision of a Division Ben ch of this Court rendered in M/S. PRIYA VART DEWAN SINGH & ORS. Versus THE SENIO R SUPERINTENDENT OF TAXES, GOVERNMENT OF TRIPURA & ORS. (Supra). Section 20 of the Tripura Sale Tax Act, 1976 which came to be scrutinized therein, contained a n identical proviso and is extracted hereinbelow: (cid:28)20. Appeal. - (1) Any dealer objecting to an order of assessment or penalty pa ssed under this Act, may within thirty days from the date of the service of such order, appeal to the prescribed authority against such assessment or penalty: Provided that - (i) no appeal shall be entertained by the said authority unless he is satisfied that the amount of tax assessed or the penalty levied, if not ot herwise directed by him, has been paid: (cid:29) As would be evident from the above quote, the appeal as contemplated therein was not entertainable unless the amount of tax assessed or the penalty/levy had b een paid. The proviso however contemplated that such a deposit would be indispen sable unless otherwise directed by the appellate authority. While interpreting the words (cid:28)if not otherwise directed by him (cid:29) it was propounded that the power re latable thereto conferred on the appellate authority was discretionary in nature and that consequently if a prayer was made for stay of the deposit of the amoun t of tax assessed or the penalty levied it was incumbent on such authority to co nsider the same and make an order giving reasons for the decision. The satisfac tion as envisaged in this proviso, their Lordships held, signified that the appe llate authority was to give reasons for reaching such a conclusion. That the po wer so conferred was quasi judicial in nature and that the discretion was to be exercised not according to one’s whims or humour but informed with fairness and reasonableness was underlined. The Second proviso to Section 24 of the Act, we find is in pari materia, with th e essential features of the proviso to Section 20. On a consideration of the co ntext and the treatment of the issue decided, we respectfully subscribe to the v iew taken in the above referred decision. In the above premise, the orders of 09.02.2011 and 05.07.2011 passed by the Depu ty Commissioner of Taxes (Appeals), Guwahati and the one dated 05.01.2012 of the learned Assam Board of Revenue impugned herein are interfered with. The petiti oner’s request for grant of stay of the deposit of the amount of tax, penalty or interest assessed, as the case may, would be considered afresh by the Deputy Co mmissioner of Taxes (Appeals) Guwahati and a decision to that effect would be re ndered by recording reasons in endorsement thereof. The parties would appear before the aforementioned appellate authority on 27.06. 2012, whereafter, he (appellate authority) would proceed with the matter in acco rdance with law. The petitions are allowed to the above extent. No costs.