M. N. ROY, J. ( 1 ) THIS application for appropriate interim orders, amongst others, was filed in an appeal, [1990] 183 ITR 528 (supra), which has been presented against the judgment arid order dated March 9, 1990, whereby a learned single judge of this court rejected the writ petition which was moved against three orders, all dated February 16, 1990, relating to the assessment years 1984-85, 1985-86 and 1986-87 passed by the Assistant Commissioner of Income-tax, Central Circle-XXI, Calcutta, refusing to grant stay of realisation of the demand as disputed for the said assessment years pending disposal of the first appeal. ( 2 ) THE appellant/petitioner (hereinafter referred to as the said "company") is, admittedly, an existing public company and carries on manufacturing, amongst others, of tyres and tubes and has claimed to be maintaining accounts on the basis of the English calendar year ending on December 31 of every year and the method of accounting adopted is the mercantile basis. It has been claimed that such accounts are maintained on accrual basis and thus the profit or loss is also computed on such basis, following the mercantile system of accounting and the assessments have also been made on that basis. ( 3 ) THE said company is also a registered dealer, both under the Sales Tax Acts of the States and the Centre and has stated that they are selling their products both in wholesale and retail markets from their various branches and depots. It was claimed that the sales tax payable by them is included in the invoices as raised and such tax is recovered from the customers. It was also the case of the said company that, under or in terms of the various Acts of different States, they are required to pay sales tax, turnover tax and purchase tax in respect of sales and purchases effected by them in the respective States. They are also stated to have furnished returns duly and also to have deposited sales tax and other taxes within the permissible period. They are also stated to have furnished returns duly and also to have deposited sales tax and other taxes within the permissible period. ( 4 ) IT was the case of the said company that their maximum sale and turnover usually takes place in the month of December each year in comparison to the other months and following the mercantile system of accounting as mentioned earlier, in computing the profit and loss of each year, they take the invoice amounts with all liabilities including sales tax, purchase tax and turnover tax and also other duties, and the tax liabilities are debited and although the actual receipt or actual payment either partly or wholly may go over to the next year, such fact is ignored in computing the income and profit or loss of the said company. It has also been stated that for the fourth quarter ending December 31, or the month ending December 31 of each year itself, the amount of sales tax, purchase tax and turnover tax amounts to about Rs. 5 crores, which becomes payable by the said company after December 31 of each year either for the quarter ending December or the month ending December each year and does not become payable until one or two or three months, as the case may be, which falls in the next accounting year by virtue of the provisions of the Sales Tax Act and the Rules framed thereunder. The said company has stated that they are liable to pay Central excise duty on the goods manufactured by them under the Central Excises and Salt Act, 1944, read with the Rules framed thereunder and in view of several decisions prevailing at the relevant time, they bona fide disputed their liability to pay central excise duty on post-manufacturing expenses, apart from disputing their liability to pay actual excise duty. It has been stated that because of the insistence of the Central Excise authorities, the said company had to file several writ petitions in this court and appropriate interim orders were received. In view, of the above, it has been claimed that thus it would be apparent that in so far as the accrued liabilities for the Central excise duties are concerned, the actual payments had to be postponed. The said company has, of course, indicated that all income under the Income-tax Act, 1961. In view, of the above, it has been claimed that thus it would be apparent that in so far as the accrued liabilities for the Central excise duties are concerned, the actual payments had to be postponed. The said company has, of course, indicated that all income under the Income-tax Act, 1961. , will be for the purpose of charge of income-tax and computation of total income to be classified under six heads and Section 14 (D) relates to the head ''profits and gains of business or profession". Chapter IV-D, which starts with Section 28 and ends with Section 44d and the said Section 28 provides that the income referred to therein shall be chargeable to income-tax under the head "profits and gains of business or profession". Section 29 provides that income referred to in Section 28 shall be computed in accordance with the provisions in Sections 30 to 43a of the Act. ( 5 ) THE said company has stated that, after completion of affidavits, the proceeding was heard by a learned single judge of this court for several days and thereafter, on December 5, 1989, by his judgment and order, the said learned judge was pleased to dismiss the writ application and discharge the rule and as a consequence thereof, vacated all interim orders. While making the judgment and order as he did, the learned judge, amongst others, has recorded that, on a consideration of the impugned orders as annexed to the writ petition, he was of the view that the Assistant Commissioner of Income-tax, respondent No. 1, had applied his mind and granted certain reliefs to the said company; as a result whereof, the said respondent had duly disposed of the application under Section 220 (6) of the Income-tax Act, by imposing certain conditions. He was also of the view that there was neither any summary refusal of the prayers as made nor the orders, as made, were arbitrary and capricious and the court was also of the clear view that if the Income-tax Officer concerned has exercised his jurisdiction in a particular manner, which was neither mala fide nor capricious nor done for collateral purposes nor by taking into consideration matters extraneous to the issue, it would not be open to the High Court to interfere in its supervisory jurisdiction. The learned judge was also of the clear view that the guidelines as contained in the instructions, as disclosed with the petition would not retain their validity, in view of the subsequent instructions, the particulars whereof would be indicated hereafter. The learned judge was also of the view that it was not in dispute that the guidelines and/or instructions have no impact upon the disposal of the petition under Section 220 (6) of the Income-tax Act, 1961, and the principles which were relied on at the Bar, on the basis of the reported decisions, could not also be disputed. The learned judge was further of the view that the subsequent instructions make it clear that, while exercising the discretion under Section 220 (6) as aforesaid, the officer concerned has to consider various factors and he was of the view that the respondent officer had considered the relevant factors and disposed of the applications for stay, giving some reliefs and this court would not be entitled to substitute the same by its own discretion, since it could not sit as a court of appeal upon every decision of the statutory authority. Such observations were made by the learned judge on the basis of the decisions in the case of State of U. P. v. Maharaja Dharmander Prasad Singh. The orders as made were not found to be mala fide, capricious or even made arbitrarily. ( 6 ) DR. Pal, after placing the facts, referred to Instruction No. 1362, which deals with exercise of discretion under Section 220 (6) of the Income-tax Act and which was issued, as a result of the review of the existing instructions and the instructions contained and which has indicated that the instructions as contained in Instruction No. 1362 supersede all previous instructions on the subject. He pointed out that this instruction was not known to the said company, but the same became known to them as the said instruction was disclosed by the respondent authorities in the proceedings. He pointed out that this instruction was not known to the said company, but the same became known to them as the said instruction was disclosed by the respondent authorities in the proceedings. He, in fact, made a specific reference to paragraph 3, which is to the following effect: ( 7 ) UNDER Section 220 (6) of the Income-tax Act, the Income-tax Officer may, in his discretion, subject to such conditions as he may think fit to impose, treat the assessee as not being in default in respect of the amount in dispute in the appeal, as long as such appeal remains undisposed of, even though the time for payment has expired. ( 8 ) AND paragraph 5 : in exercising this discretion, the Income-tax Officer should take into account factors such as : whether the points in dispute relate to facts ; whether they arise from different interpretations of law ; whether the additions have been made as a result of detailed investigation ; whether the additions are based on materials gathered through enquiry/survey/search and seizure operations ; whether the disputed addition to income has been assessed elsewhere, by way of protective assessment and the tax thereon has been paid by such person, etc. The magnitude of the addition to the income returned cannot be the sole determinant in this regard. Each disputed addition will need to be considered to arrive at the quantum of tax that may need to be stayed and stated, that such discretion should be the discretion of a reasonable man. ( 9 ) ON the basis of the chart which was filed by Mr. Banerjee, appearing for respondents Nos. 1 to 3, the following facts would emerge : Assessment year Assessment year Assessment year Assessment year Rs. Rs. Rs. Rs. 14, 88, 73, 710 (-) 1, 55, 00, 000 13, 33, 73, 710 13, 33, 73, 710 23, 06, 77, 803 31, 87, 41, 999 6, 91, 02, 709 14, 19, 85, 891 18, 35, 42, 907 (51. 81%) (61. 55%) (57. 58%) 6, 41, 71, 001 8, 86, 91, 12 12, 51, 99, 092 (48. 19%) (38. 45%) (42. 42%) ( 10 ) IT was Mr. Banerjee's specific submission that, on the basis of the contents of paragraph 9, as quoted hereunder :--As stated in paragraph 3 above, in granting stay, the Income-tax Officer may impose such conditions as he may think fit. 19%) (38. 45%) (42. 42%) ( 10 ) IT was Mr. Banerjee's specific submission that, on the basis of the contents of paragraph 9, as quoted hereunder :--As stated in paragraph 3 above, in granting stay, the Income-tax Officer may impose such conditions as he may think fit. Thus, the Income-tax Officer may: (i) require the assessee to offer suitable security to safeguard the interests of the Revenue ; (ii) require, during the pendency of the appeal, the assessee to pay towards the disputed taxes a reasonable amount in lump sum or in instalments ; (iii) require an undertaking from the assessee that he will cooperate in the early disposal of the appeal failing which the stay order will be cancelled ; (iv) reserve a right to review the order passed by him after the expiry of a reasonable period, say up to six months, even if the appeal remains undisposed of ; until then, to ascertain if the assessee has fulfilled the undertaking at (iii) above as well as to consider any other development such as a pronouncement of a higher court on the points indicated in para 6 above. ( 11 ) WHILE the Income-tax Officer will exercise his discretion in this matter after taking note of the specific situation obtaining in each case and pass appropriate orders, conditions (iii) and (iv) should invariably be imposed read with Section 264 of the Income-tax Act, 1961, which deals with revision of certain orders, and thus any interference by this court in these proceedings would admittedly be improper, as revisional applications lay, and as such also this court should not make any interference. ( 12 ) THERE is no doubt that Section 43b has been held to be intra vires and not ultra vires and, as such, Dr. Pal has not claimed or based his submissions on the ultra vires nature and character of the said section. But his main submissions were on the basis as indicated earlier, viz. , discretion which was required to be exercised by the Officer concerned, was not exercised reasonably and he claimed and contended that to find out whether such discretion was reasonably used, this court must have before it some reasons where from it can form the opinion, on the basis of the reasons as disclosed, whether discretion was used in the manner as indicated. It was his submission that since no reason has been disclosed or even on the basis of the reasons as disclosed, it is not clear as to why even the discretion in favour of the said company was issued, the determinations as made by the Officer concerned should be set aside by asking him to reconsider the matter afresh and to dispose of the same by giving his reasons. ( 13 ) IN support of his submissions regarding the ouster of jurisdiction of this court in a matter of the present nature, Mr. Banerjee referred to the case of Assistant Collector of Central Excise v. Dunlop India Ltd. where the Supreme Court has observed that the tendency to grant interim orders, with a great potential for public mischief for the mere asking is deprecated by the Supreme Court. It was further observed that such interim orders, often ex parte and non-speaking, are made even by the High Courts while entertaining writ petitions under Article 226 of the Constitution and in the Calcutta High Court, on oral application too, and also deprecated the practice of granting interim order which practically give the principal relief sought in the petition for no better reason than that a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other relevant considerations, apart from observing that the collection of public revenue has been seriously jeopardised and budgets of Governments, and local authorities affirmatively prejudiced to the point of precariousness consequent upon interim orders made by courts. But that does not mean that interim orders may never be made against public authorities. There are, of course, cases which demand that interim orders should be made in the interests of justice. Where gross violations of the law and injustices are perpetrated or are about to be perpetrated, it is the bounden duty of the court to intervene and give appropriate interim relief. In cases where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizen's faith in the impartiality of public administration, a court may well be justified in granting interim relief against a public authority. In cases where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizen's faith in the impartiality of public administration, a court may well be justified in granting interim relief against a public authority. But since the law presumes that public authorities function properly and bona fide with due regard to the public interest, courts must be circumspect in granting interim orders of far reaching dimensions or orders causing administrative, burdensome inconvenience or orders preventing collection of public revenue for no better reason than that the parties have come to the court alleging prejudice, inconvenience or harm and that a prima facie case has been shown. There can be and there are no hard and fast rules. But prudence, discretion and circumspection are called for. There are several other vital considerations apart from the existence of a prima facie case. There is the question of balance of convenience. There is the question of irreparable injury. There is the question of public interest. There are many such factors worthy of consideration and in the case of indirect taxation where the burden has already been passed on to the consumer, no interim relief should be given to the manufacturer, dealer or the like. Hence, where a company claimed exemption of certain percentage of excise duty on certain goods and the Department was of the view that the company was not entitled to the exemption as it had cleared the goods earlier without paying central excise duty, the granting of an interim order restraining the excise authorities from levy and collection of excise duty merely on furnishing bank guarantees by the company was held unjustified. It was held that even assuming that the company had established a prima facie case, it was not sufficient justification for granting an interim order. Also Governments are not run on mere bank guarantees and very often some courts act as if furnishing a bank guarantee would meet the ends of justice. No governmental business or, for that matter, no business of any kind can be run on mere bank guarantees ; liquid cash is necessary for the running of a Government as indeed any other enterprise. Where matters of public revenue are concerned, it is of the utmost importance to realise that interim orders ought not to be granted merely because a prima facie case has been shown. Where matters of public revenue are concerned, it is of the utmost importance to realise that interim orders ought not to be granted merely because a prima facie case has been shown. More is required. The balance of convenience must be clearly in favour of the making of an interim order and there should not be the slightest indication of a likelihood of prejudice to the public interest. In that case, it has also been observed that Article 226 is not meant to shortcircuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice requires it, that recourse may be had to Article 226 of the Constitution. But then the court must have good and sufficient reason to bypass the alternative remedy provided by the statute. Surely matters involving the revenue where statutory remedies are available are not such matters. The Supreme Court can take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolonging the proceedings by one device or the other. The practice needs to be strongly discouraged and to supplement his submissions, Mr. The Supreme Court can take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolonging the proceedings by one device or the other. The practice needs to be strongly discouraged and to supplement his submissions, Mr. Banerjee referred to Section 226 (2) of the Income-tax Act, 1961, which deals with other modes of recovery and he made a specific reference to Sub-section (3) (vi) thereunder, which indicates that where a person to whom a notice under this sub-section is sent objects to it by a statement on oath that the sum demanded or any part thereof is not due to the assessee or that he does not hold any money for or on account of the assessee, then, nothing contained in this sub-section shall be deemed to require such person to pay any such sum or part thereof, as the case may be, but if it is discovered that such statement was false in any material particular, such person shall be personally liable to the Income-tax Officer to the extent of his own liability to the assessee on the date of the notice or to the extent of the assessee's liability for any sum due under this Act, whichever is less. ( 14 ) MR. Mitra, appearing for the other respondent No. 4, adopted the submissions of Mr. Banerjee and also made a specific reference to Sub-section (3) (vi) of 226. It was submitted by him further that when judicial discretion in the instant case has been exercised, following the observations in the case of Lord Krishna Sugar Mills Ltd. , v. ITO [1952] 22 ITR 410 (Punj) and A. L. A. Firm v. CIT, this court should not make any interference and more particularly when there is no challenge or any materials to hold that the Income-tax Officer, in the instant case, had not at all applied his mind. It was then submitted by Mr. It was then submitted by Mr. Mitra that, admittedly, Section 43b was found to be valid and an appeal was taken where no stay order was issued and, therefore, the action of the said company, as taken now, should be deemed to be an action whereby they are trying to have some benefits indirectly which they could not get directly and such procedure or process should not be allowed to be continued. Mr. Mitra further claimed that the present circular has certainly explained the scope of Section 43b, but even then on the basis of the observations in the case of Siliguri Municipality v. Amalendu Das [1984] 146 ITR 624 (SC), this court would not be empowered to make any interference, in the facts and circumstances of the present case. In that case, the Supreme Court has observed that the High Court should not, in proceedings under Article 226 of the Constitution of India, grant any stay of recovery of tax, save under very exceptional circumstances ; the grant of stay should be an exception and not the rule. A levy or impost does not become bad as soon as a writ petition is instituted in order to assail its validity, and there is no warrant for presuming the levy or impost to be bad at the very threshold of the proceedings. The only consideration at that juncture is to ensure that np prejudice is occasioned to the taxpayers in case they ultimately succeed at the conclusion of the proceedings. This object can be attained by requiring the body or authority levying the impost to give an undertaking to refund or adjust against future dues, the levy of tax or rate or a part thereof, as the case may be, in the event of the entire levy or a part thereof being ultimately held to be invalid by the court without obliging the taxpayers to institute a civil suit in order to claim the amount already recovered from them and a municipality cannot function or meet its financial obligations if its source of revenue is blocked by an interim order restraining it from recovering a levy such as a graduated consolidated rate on the annual value of holdings when such a levy is impugned in a writ petition. An interlocutory order of such a nature might well paralyse the administration and dislocate the entire working of the municipality, apart from indicating that the main purpose of passing an interim order is to evolve a workable formula or a workable arrangement to the extent called for by the demands of the situation keeping in mind the presumption regarding the constitutionality of the legislation and the vulnerability of the challenge, only in order that no irreparable injury is occasioned and, in the facts of that case, it has been observed that, if, on an earlier occasion, a Division Bench of the High Court has vacated an interim order of stay of recovery of an impost on similar facts and in a similar situation, the High Court has to impose on itself discipline in similar matters in obeisance to such weighty institutional considerations like the need for maintaining decorum and comity. We have indicated the gist of the submissions as put forward by Dr. Pal. He referred to the observations in the case of Vetcha Sreeramamurthy v. ITO [1956] 30 ITR 252 (AP), where, dealing with Section 45 of the Indian Income-tax Act, 1922, which postulates about appeals from orders of the Income-tax Officer and the effect of nonpayment of tax and has also dealt with the discretion of the officer concerned to treat the assessee as not in default and what should be the character of such discretion or the duty to be exercised in such cases, it has been observed that the discretionary power conferred by Section 45 of the Income-tax Act on the Income-tax Officer to treat an assessee who has not paid the tax demanded, as not being in default if he has preferred an appeal, is a power exercisable both against and in favour of the assessee or the State, as the case may be. It is not a power which could be exercised only as against the State and the discretionary power conferred by Section 45 of the Income-tax Act on the Income-tax Officer is coupled with a duty to exercise his discretion when the facts calling for its exercise exist. The fact that the exercise of the power is left to the discretion of the officer does not exonerate him from discharging his duty. The fact that the exercise of the power is left to the discretion of the officer does not exonerate him from discharging his duty. It has also been observed in that case that, if the Income-tax Officer refuses to exercise any discretion at all, or his discretion is exercised arbitrarily, capriciously or unreasonably or by taking into consideration extraneous and irrelevant considerations, the court can compel the officer to discharge his duty, that is, to exercise his discretion honestly and objectively and an application for a writ to compel the Income-tax Officer to exercise his discretion under section 45 or to exercise it honestly and objectively is not barred either on the ground that it would be one for giving interim relief pending contemplated proceedings or on the ground that the Commissioner has power to revise the order of the Income-tax Officer under Section 33a. Thereafter, a reference was made by Dr. Pal to the decision of this court in the case of Aluminium Corporation of India Ltd. v. C. Balakrishnan, [1959] 37 ITR 267, a case under Sections 23, 30 and 31 (3) of the Wealth-tax Act, 1957, wherein the question of recovery of tax came up for consideration and the learned judge has dealt with the question of discretion of the officer concerned not to treat the assessee as in default. It would appear that, pursuant to an assessment made on the assessee, the Wealth-tax Officer served a notice of demand under Section 30 of the Wealth-tax Act, 1957, wherein the following note appeared : "please note that I will not be prepared to postpone collection of tax under any circumstances. " The assessee filed an appeal under Section 23 to the Appellate Assistant Commissioner and pending the appeal he made an application to the Commissioner praying for a direction to the Wealth-tax Officer not to treat the assessee in default until the disposal of the appeal, but the Commissioner rejected the application. Thereafter the assessee made another application to the Wealth-tax Officer requesting that he be not treated as in default in view of his having filed an appeal under Section 23. The Wealth-tax Officer rejected the application. Thereafter the assessee made another application to the Wealth-tax Officer requesting that he be not treated as in default in view of his having filed an appeal under Section 23. The Wealth-tax Officer rejected the application. On an application by the assessee for relief against the order of the officer rejecting the application and, on such facts, it has been held that (i) the application before the Commissioner was not in order as the proper application that was contemplated under the Act was to the Wealth-tax Officer ; (ii) the power under Section 31 (3) to treat an assessee, who had appealed from the order of assessment, as not being in default as long as such appeal was undisposed of, was a matter of discretion to be exercised judicially ; (iii) a judicial exercise of discretion involved a consideration of the facts and circumstances of the case in all its aspects, such as, the issues raised in the case and the prospects of the appeal being successful, the position and economic circumstances of the assessee, the amount involved, or the realisation of the amount being in jeopardy ; (iv) on the facts, as in this case the officer from the very beginning had a closed mind and it did not appear that the officer had applied his mind judicially to all the relevant aspects of the case before making his order, the order should be quashed and the case remanded to the officer to consider the matter again and exercise his discretion in a judicial manner. The learned judge has further observed that quick realisation of tax may be an administrative expediency, but, by itself, it constitutes no ground for refusing stay of collection of tax. While determining such an application, the authority exercising discretion should not act in the role of a mere tax-gatherer. Dr. Pal claimed that such view as expressed by the learned single judge of this court, in the case referred to hereinbefore, has also been referred to and adopted by the Kerala High Court in the case of N. Rajan Nair v. ITO, [1987] 165 ITR 650. ( 15 ) APART from the above, Dr. Pal also relied on the case of ITO v. K. S. Lokkandwala, a decision of the Income-tax Appellate Tribunal, after serving copies of the same on the learned advocates for the answering respondents. ( 15 ) APART from the above, Dr. Pal also relied on the case of ITO v. K. S. Lokkandwala, a decision of the Income-tax Appellate Tribunal, after serving copies of the same on the learned advocates for the answering respondents. In the facts of that case, it has been observed that the mere fact that the various amendments proposed by the Finance Act, 1987, came into force with effect from April 1, 1988, does not necessarily lead to the conclusion that the aforesaid proviso inserted to Section 43b with the sole object of explaining the real intendment of the statutory provision will be applicable only from the assessment year 1988-89. Since the aforesaid proviso inserted by the Finance Act, 1987, merely clarifies the real legislative intention, the same should be made applicable ever since the provision of Section 43b was introduced. Such an interpretation will be perfectly in consonance with the object and spirit with which the provisions of Section 43b and various amendments therein were introduced from time to time. The first proviso to Section 43b which was inserted by the Finance Act, 1987, to obviate unnecessary disallowance of the amount of sales tax for the quarter is merely a declaratory provision which was inserted to clarify the real legislative intention and, thus, it should be held to be applicable since the introduction of Section 43b, i. e. , from the assessment year 1984-85. ( 16 ) IT should be indicated that the Income-tax Officer, in the case, disallowed a sum of Rs. 21,580 out of deduction of Rs. 91,105 claimed by the assessee on account of sales tax, on the ground that the said amount of Rs. 21,580 was not paid during the relevant accounting year and, hence, not allowable as per the provisions of Section 43b. The Commissioner (Appeals) held that the aforesaid amount of Rs. 21,580 represented the sales tax liability for the last quarter ending March 31, 1984, which became payable on May 7, 1984, according to Rule 31 of the Sales Tax Rules, which permits payment of sales tax of the last quarter within one month and seven days from the end of the quarter. The Commissioner (Appeals) held that since the amount became payable on May 7, 1984, the same could not be validly disallowed by resort to Section 43b. He, therefore, deleted the aforesaid disallowance of Rs. The Commissioner (Appeals) held that since the amount became payable on May 7, 1984, the same could not be validly disallowed by resort to Section 43b. He, therefore, deleted the aforesaid disallowance of Rs. 21,580 and on the Revenue's appeal, the above observations have been made, apart from indicating that the recent insertion of the new Explanation 2 to Section 43b by the Finance Act, 1989, with retrospective effect from April 1, 1984, does not, in any manner, affect the non-applicability of the main provisions of Section 43b with regard to the allowability of sales tax pertaining to the last quarter; which has been duly paid to the State Government before the due date of furnishing the return under Section 139 (1 ). ( 17 ) ON the basis of the above determinations, Dr. Pal claimed and contended and that too on a reference to the chart as indicated earlier, which was produced by Mr. Banerjee, that the discretion in the instant case was not duly and properly exercised by the officer concerned and even if such discretion has been used by him, the same cannot be treated or deemed to be the discretion of a reasonable man, as even though he has given some relief to the said company, yet has not given reasons why the further exemption in respect of payment has not been allowed. In fact, the discretion, as used, was claimed by Dr. Pal- to be bald and bare and without any proper and appropriate reasons, on the basis whereof this court could found and form its opinion as to the correctness or otherwise of such use of discretion. ( 18 ) AFTER hearing the learned advocates, we are of the view that even the power to use the discretion, which has been reposed on the officer concerned, must be used and exercised as a reasonable man and the superior Tribunal or authority must be in a position to know, after going through the order itself, as to why, how and in what manner, such discretion, even though in favour of the assessee, has been exercised. Perusing the order as placed before us, we do find that some discretion to the benefit and advantage of the said company has been issued. Perusing the order as placed before us, we do find that some discretion to the benefit and advantage of the said company has been issued. But, considering the way the discretion has been used, we are not in a position to find out the appropriate reasons for using the discretion and agreeing with Dr. Pal, we also find that while using such discretion, as he did, the officer, concerned has not appropriately dealt with or taken into consideration all the relevant factors which were necessary to be dealt with and considered. The discretion, if used, must be the discretion of a reasonable man and with due reason of such a man and not so abrupt as in this case and, as such, the decision as made in this case can be held to be not proper and justified and such being the position, the case as cited on behalf of the Revenue will have no application. ( 19 ) SUCH being the position, we allow this application. But, instead of keeping the entire matter pending for a long time, after issuing the stay order as asked for, we think that the matter should now be sent back to the officer concerned for reconsideration and if he elects to use his discretion, as he has done, in favour of the said company, he should give his due and proper reasons. ( 20 ) WITH the observations as above, we dispose of this application and since we feel that no useful purpose would be served by keeping the appeal pending and that too for the views as expressed, we treat the appeal on the day's list and have the same disposed of also. ( 21 ) WE further direct that respondent No. 1 should now deal with and dispose of the proceedings involved and pending before him by passing a reasoned order within four weeks from today. ( 22 ) WHILE making this order, we also keep it on record that we have neither decided anything on merits nor the Departmental appeals which are pending. ( 23 ) ALL parties including the respondent officer concerned should act on the basis of the order portion of this order on the usual undertaking. ( 24 ) STAY as prayed for is refused.