PURUSHOTHAMAN V N Vs. AGRICULTURAL INCOME TAX OFFICER

JUDGEMENT

(1.) The petitioner is an assessee to Agricultural Income Tax on the files of the 1st respondent, the Agricultural Income Tax Officer. For the assessment year 1980-81 he filed a return showing a loss of Rs. 12,049.16. The Agricultural Income Tax Officer assessed him to the best of his judgment as per Ext. P1 order dated 25-9-1981 on a total income of Rs. 63,328.38 and levied a tax and surcharge of Rs. 25,791.48. The assessee filed an appeal, Ext. P2 before the 2nd respondent. Appellate Assistant Commissioner, Agricultural Income Tax and Sales Tax. Pending the appeal, he also filed a petition to stay the collection of tax till the disposal of the appeal. This is evidenced by Ext. P3 dated 22nd October, 1981. By Ext. P4 order, the 2nd respondent, Appellate Assistant Commissioner, passed an order rejecting the prayer for stay of collection, but, permitted the petitioner to pay the amount in 4 instalments as detailed therein. Thereafter this OP. was filed praying to quash Ext. P4 order of the 2nd respondent and for the issue of a writ of mandamus directing the 2nd respondent to consider and dispose of Ext. P2 appeal on merits and in accordance with law. This court passed an interim order in C.M.P. No. 22854 of 1981 staying the further collection of tax on condition that the petitioner remits Rs. 8,000/- on or before 3-1-1982.

(2.) Mr. P. A. Mohammed, counsel for the petitioner, contends that the 2nd respondent, Appellate Assistant Commissioner, has failed to consider Ext. P3 petition in accordance with law. According to him, Ext. P4 is laconic and has not been passed bearing in mind the principles which should be applied in exercising a discretion. According to counsel, the power vested in the 2nd respondent to stay the collection of tax should be exercised judicially and taking into account all the facts and circumstances of the case. In this case there has been no judicial disposal. The order is infirm and so should be quashed. Government Pleader, raised a contention that Ext. P4 order satisfies the requirements of law, that the Appellate Assistant Commissioner has exercised the power taking into account all relevant matters and that the petitioner could have filed a petition before the Agricultural Income Tax Officer under the proviso to S.40 of the Agricultural Income Tax Act to obtain the relief.

(3.) Ext. P4 order of the Appellate Assistant Commissioner of Agricultural Income Tax and Sales Tax dated 22-10-1981, states as follows: