Nainar Sundaram, J.
1. The controversy in the writ petition is of a limited scope. Hence, I have decided to take up and dispose of the same today itself on merits. The petitioner has suffered an order of assessment under the Tamil Nadu Agricultural Income-tax Act, 1955, hereinafter referred to as 'the Act', at the hands of the respondent. Mr. R. L. Ramani, learned counsel appearing for the petitioner, states that as against the order of assessment, a regular appeal has been preferred to the Assistant Commissioner of Agricultural Income-tax, Uthagamandalam, and the same is pending and hence, as per the proviso to s. 40 of the Act, the respondent should not treat the petitioner as in default. Section 40 of the Act with the proviso reads as follows :
'Recovery of tax and penalties. - Any amount specified as payable in a notice of demand under section 30 or an order under section 31, 32 or 34, shall be paid in such number of instalments, within such time, at such place, to such person and in such manner as may be prescribed, and any assessee failing so to pay shall be deemed to be in default :
Provided that, when an assessee has presented an appeal under section 31, the Agricultural Income-tax Officer may, in his discretion, treat the assessee as not being in default so long as such appeal is undisposed of.'
2. Learned counsel for the petitioner also brings to my notice a pronouncement of a Bench of this court, consisting of Veeraswami C.J. and Raghavan J., in David v. Agrl. ITO : 86ITR699(Mad) , to say that the expression 'may' should be read only as 'shall'. The grievance of the petitioner has arisen this way. The petitioner filed a petition for stay of collection of the tax and in that petition, the respondent has passed the impugned order dated March 26, 1985, stating that the stay of collection of tax could not be complied with. Mr. R. Lokapriya, learned Government Advocate, would submit that the proviso to s. 40 of the Act would come into play only if the Agrl. ITO is to treat the assessee as in default and that as on date, there is no indication as to whether any coercive steps are being taken concretely, except the assertion of the petitioner to the effect that such steps are being taken by the respondent. It is needless to state that the import of the proviso to s. 40 of the Act as well as the decision of this court, referred to above, will be kept in mind by the respondent if in fact he should take any concrete steps to treat the assessee as in default in spite of the appeal being undisposed of. Apart from making this position clear, there is no need to issue a writ of certiorarified mandamus as prayed for in the writ petition to quash the impugned order rejecting the prayer for stay and further directing the respondent to grant absolute stay of collection of the tax. Subject to the above observations, this writ petition is dismissed. No costs.