B M MOIDIN KUNHI Vs. STATE OF MYSORE

JUDGEMENT

(1.) These are three revision petitions by a common assessee under section 23 of the Mysore Sales Tax Act, 1957, hereinafter referred to as the Act, and they are directed against the common order dated 18th March, 1970, made in S.T.A. Nos. 71, 72 and 73 of 1970 on the file of the Mysore Sales Tax Appellate Tribunal, Bangalore.

(2.) The assessee was assessed to sales tax for the years 1964-65, 1965-66 and 1966-67 by three separate assessment orders dated 17th September, 1969, made by the Commercial Tax Officer, Puttur, South Kanara. By the said assessment orders, a total sum of Rs. 65,101.75 was levied as tax and penalty for the said three years. The assessee preferred three separate appeals before the Deputy Commissioner of Commercial Taxes, Mangalore Division, Mangalore, under section 20 of the Act. In the said appeals, he made applications for entertaining the appeals without payment of the tax and penalty. He also prayed for stay of the recovery of the said amounts. In the applications for stay, the assessee stated that the tax and penalty levied is heavy and he has no liquid resources to pay the huge amount and that he is prepared to furnish security of immovable properties situated in two villages of Sullia Taluk. The Deputy Commissioner heard the Advocate for the assessee and made three separate orders on 15th December, 1969; thereby he ordered that the assessee should pay a part of the tax assessed and should furnish a bank guarantee for the balance amount of tax and the entire penalty. The order further stated that if the assessee failed to comply with the said order before 1st January, 1970, the appeals filed by the assessee would be rejected without further notice. The orders of the Deputy Commissioner were served on the assessee, according to him, on the 3rd February, 1970, long after the expiry of the date within which he was required to pay part of the tax and furnish security.

(3.) Aggrieved by the orders of the Deputy Commissioner, the assessee preferred three appeals to the Mysore Sales Tax Appellate Tribunal, Bangalore, the appeals being S.T.A. Nos. 71, 72 and 73 of 1970 as aforesaid. The Tribunal modified the order of the Deputy Commissioner by directing the assessee to furnish bank guarantee for the entire tax amount and penalty. Before the Tribunal the assessee contended that he was not in a position to furnish bank guarantee and that the Deputy Commissioner was in error in not considering his offer to furnish security of immovable properties. The Tribunal purporting to rely on the decision of this court in K. M. Muniswamappa v. State of Mysore ([1968] 22 S.T.C. 536) rejected the contention of the assessee on the view that the question as to the form of security is a matter of discretion vesting in the Deputy Commissioner and that in the matter of exercise of discretion the Tribunal will not interfere. Aggrieved by the said order of the Tribunal, the assessee has preferred the above revision petitions.