1. The order which is the subject-matter of these petitions, is this :
The petitioners are informed that it is not proposed to stay the collection of further amount of tax of Rs. 1,40,041.21 due from them under Section 39-A(2) of the Act.
2. Section 39-A(2) says that, pending the exercise of the powers of appeal, revision or review, the appropriate appellate authority, or revising or reviewing authority may, on application made by the assessing authority or the assessee, stay the refund to the assessee of any amount overpaid, or the collection of further amount of tax due from the assessee, in pursuance of the order which is the subject-matter of appeal, revision or review. It may be seen that the sub-section vests in the appellate authority or revising or reviewing authority full discretion to direct stay of collection of further amount of tax due from the assessee, in pursuance of the order which is the subject-matter of appeal, revision or review. But, where such discretion is vested in the statutory authority, this court has repeatedly pointed out that the power is for exercise and not for a laconic refusal to exercise it. Prima facie the order which is sought to be quashed seems to suffer from that defect. But it is pointed out that the appellate authority in this case required the assessees to furnish security in order that he might consider the grant of stay. This requisition was not complied with. If that be so, we could see nothing wrong in the impugned order. In fact, the assessees before us do not dispute the fact that the Appellate Assistant Commissioner has asked for security. But what is pointed out for the assessees is that the security was asked for under the proviso to Sub-section (5) of Section 31, That proviso, in effect. contains a power identical with the power under Sub-section (2) of Section 39-A. That being the case, when the officer asked for security and it was not furnished, the appellate authority was entitled to decline stay.
3. On that view, the petitions are dismissed. No costs. We should observe that the Appellate Assistant Commissioner concerned should be more careful in wording his order declining to grant stay, for ex facie the order it should appear why he declined stay.