1. Pending a revision petition filed by the petitioner before the Deputy Commissioner of Commercial Taxes, Madras Division, he seems to have applied for stay of collection of the provisional tax for the year 1962-63. The Deputy Commissioner refused to grant stay in the following terms :
The request of the petitioner to stay collection of the provisional tax for 1962-63 until the disposal of the revision petition cannot be complied with.
2. The power to grant stay is contained in the proviso to Sub-section (4) of Section 33 of the Madras General Sales Tax Act, 1959. That proviso reads
Provided that the Deputy Commissioner may in his discretion, give such directions as he thinks fit, in regard to the payment of such tax, fee or other amount, if the applicant furnishes sufficient security to his satisfaction in such form and in such manner as may be prescribed.
3. It is obvious that the power given by this proviso is for exercise and not for arbitrary refusal. No doubt, the exercise of power under the proviso is discretionary. But, where a statute entrusts a taxing authority with such discretionary power, the discretion must be exercised according to law and reason, and neither arbitrarily nor according to whims. The petitioner states that he furnished security. But there is not a word in the impugned order of the Deputy Commissioner to show that he paid any attention to the security furnished and on what grounds he declined to grant the prayer. If the security is furnished, and the Deputy Commissioner is satisfied about its sufficiency, he is expected to grant stay in terms of the proviso. It seems to me that, in this case, as the order of the Deputy Commissioner shows, he declined to exercise the power entrusted to him by the proviso to Sub-section (4) of Section 33.
4. The petition is allowed. The Deputy Commissioner is directed to dispose of the stay petition of the petitioner afresh. No costs.