JUDGMENT I.A. Ansari, J. 1. Heard Dr. A.K. Saraf, learned Senior Counsel appearing on behalf of the petitioner, and Mr. D. Saikia, learned Standing Counsel, Department of Finance, Government of Assam, appearing on behalf of the respondents. 2. By order dated February 26, 2008 (annexure A to the writ petition), an assessment of tax payable by the petitioner under the Assam Value Added Tax Act, 2003, was made by respondent No. 3, namely, Superintendent of Taxes, Unit "B", Guwahati, the assessment being to the tune of Rs. 50 lakhs. Besides direction to make payment of the said assessed amount of tax, the petitioner was, vide letter, dated February 26, 2008, also directed to show cause as to why penalty of an amount of Rs. 1.50 crore should not be imposed on the petitioner. Following the said notice to show cause, an order was passed on March 19, 2008, by respondent No. 3, imposing penalty of the said amount of Rs. 1.50 crore. The petitioner was, then, served with a notice of demand for payment of Rs. 50 lakhs as tax, and a sum of Rs. 1.50 crore as penalty. Aggrieved by the notice of demand, the petitioner filed a revision petition before respondent No. 2, namely, the Commissioner of Taxes, Unit "B", Guwahati. While filing the revision, the petitioner also prayed for stay of realization of the amounts, which had been demanded by way of tax and also penalty. An order was, then, passed on July 1, 2008, by respondent No. 2, stating to the effect that in order to admit the revision, it is necessary that the petitioner shall deposit 25 per cent of the disputed liability. The petitioner was accordingly directed to deposit 25 per cent of the disputed liability. Since the total demand, raised against the petitioner was to the tune of Rs. 2 crores, 25 per cent of the disputed liability would have obviously amounted to Rs. 50 lakhs. On the ground that the petitioner had not deposited 25 per cent of the disputed liability, the revision was dismissed on January 1, 2009. The petitioner, then, applied on April 8, 2009 for review of the order dated January 1, 2009, aforementioned. This application was followed by another application made by the petitioner addressed to the respondent No. 2, requesting the latter to allow the petitioner to deposit Rs. The petitioner, then, applied on April 8, 2009 for review of the order dated January 1, 2009, aforementioned. This application was followed by another application made by the petitioner addressed to the respondent No. 2, requesting the latter to allow the petitioner to deposit Rs. 25 lakhs and furnish bank guarantee for the remaining amount of Rs. 25 lakhs. Pursuant to the review application, so made, respondent No. 2 passed an order dated April 9, 2009, directing the petitioner to deposit Rs. 25 lakhs, by way of treasury challan and, against the remaining amount of Rs. 25 lakhs, the petitioner was directed to furnish a bank guarantee. Thus, the petitioner was required to deposit Rs. 25 lakhs by way of treasury challan and also furnish bank guarantee for Rs. 25 lakhs for admission of the revision petition. The petitioner, then, filed a petition on May 8, 2009, informing respondent No. 2 that the petitioner had already deposited Rs. 4 lakhs and that a period of two months be allowed to the petitioner to deposit the balance amount of Rs. 21 lakhs and also to furnish bank guarantee of Rs. 25 lakhs. As the petitioner had not deposited the balance amount of Rs. 21 lakhs, nor had the petitioner furnished the requisite bank guarantee, an order was passed by respondent No. 2, on May 8, 2009, dismissing the revision petition. The order, passed by respondent No. 2, reads, inter alia, as under: The petitioner is absent. The petitioner has submitted a petition requesting for two months time to deposit Rs. 21 lakhs and submit bank guarantee for another Rs. 25 lakhs. The petitioner has submitted copies of treasury challans for payment of Rs. 4 (four) lakhs. The revision petition was filed on June 21, 2008 and it was dropped on January 1, 2009 because the petitioner did not deposit 25 per cent of disputed amount. On request of the petitioner the petition was revised on April 9, 2009 and petitioner was asked to deposit Rs. 25 lakhs and submit bank guarantee for another Rs. 25 lakhs before the next date fixed, i.e., today. But the petitioner failed to do so. Enough opportunity has been given to the petitioner in this regard. No further opportunity can be given. Hence the petition is not admitted. Inform all concerned. 25 lakhs and submit bank guarantee for another Rs. 25 lakhs before the next date fixed, i.e., today. But the petitioner failed to do so. Enough opportunity has been given to the petitioner in this regard. No further opportunity can be given. Hence the petition is not admitted. Inform all concerned. It has, now, been submitted on behalf of the petitioner that respondent No. 2 dealt with the petitioner's prayer for stay of the notice of demand arbitrarily and, without assigning any reason, insisted that the petitioner shall deposit 25 per cent of the disputed amount before the revision is admitted. It is submitted by Dr. Saraf, learned Senior Counsel that the manner in which respondent No. 2 has dealt with the matter, is against all canons of justice and repeated judicial pronouncements made in various cases, that any authority dealing with such a case, as the present one, shall act with utmost care and attention, have been ignored. In support of his submission Dr. Saraf places reliance on the decision in Hardeodas Jagannath v. Income Tax Officer, Shillong reported in [1961] 43 ITR 562 (GAU). 4. It has, however, been pointed out on behalf of the respondents, that the petitioner, vide letter dated May 8, 2009 informed the respondents that out of the amount of Rs. 25 lakhs, which the petitioner had been directed to deposit, the petitioner had deposited Rs. 4 lakhs and requested the respondents/authorities concerned to allow a period of two months for depositing the balance amount of Rs. 21 lakhs and also for furnishing bank guarantee of Rs. 25 lakhs. It is contended on behalf of the respondents that having agreed to deposit the sum of Rs. 25 lakhs in terms of the directions issued by respondent No. 2, and having also agreed to furnish bank guarantee of the requisite amount of Rs. 25 lakhs, the petitioner cannot, now, challenge the directions, given by respondent No. 2, to make deposit of Rs. 25 lakhs and, in such circumstances, dismissal of the petitioner's revision petition is correct. 5. Before entering into the merit of the impugned order dated May 8, 2009, and the orders passed on different dates earlier thereto by respondent No. 2, it needs to be pointed out that the petitioner has, in the meanwhile, deposited a further amount of Rs. 2 lakhs. Thus, the petitioner has deposited, in all, an amount of Rs. 5. Before entering into the merit of the impugned order dated May 8, 2009, and the orders passed on different dates earlier thereto by respondent No. 2, it needs to be pointed out that the petitioner has, in the meanwhile, deposited a further amount of Rs. 2 lakhs. Thus, the petitioner has deposited, in all, an amount of Rs. 6 lakhs and an amount of Rs. 19 lakhs has remained as balance. 6. While considering the present petition, it needs to be pointed out that under Section 82(2A) of the Assam Value Added Tax Act, 2003, an application by a dealer or person shall not be entertained by the Commissioner unless such application is accompanied by the satisfactory proof of payment of minimum twenty-five per cent of the disputed tax, penalty, if any, imposed and the interest accrued thereon, if any. The provisions to Section 82(2A), however, lays down that the Commissioner may, if it thinks fit, for reasons to be recorded in writing, and subject to furnishing all such security as the Commissioner may deem fit, admit an application with part payment or without payment of the disputed amount of tax including penalty, if any, required under this Sub-section with a view to mitigate undue hardship which is likely to be caused to the dealer or person if the payment of such disputed amount is insisted on. The power so conferred on the Commissioner is momentous power. Greater the power, more careful shall be its exercise. The power, which the Commissioner has been given under Section 82(2A) to suspend the realization of the amount of recovery, is required to be exercised with utmost care and attention. The Commissioner can neither liberally grant stay without securing interest of the State, nor must he insist on deposit of disputed liability, if the dealer or the person, who was directed to make payment of tax or penalty, places sufficient materials to show that he would suffer such hardship, which he should not be made to suffer. The exercise of power, which has been conferred on respondent No. 2, namely, Commissioner of Taxes, cannot, in short, be arbitrarily exercised. 7. I may also point out that though the Commissioner of Taxes has the discretion to allow, or not to allow, a revision application, without payment of the disputed liability, such exercise of discretion has to be judicious and not arbitrary. 7. I may also point out that though the Commissioner of Taxes has the discretion to allow, or not to allow, a revision application, without payment of the disputed liability, such exercise of discretion has to be judicious and not arbitrary. In an order, admitting a revision application, without insisting that the assessee shall deposit the assessed amount, or, in an order, refusing to admit a revision application, until payment of the assessed amount and/or penalty, the Commissioner must assign cogent reasons. There can be no uniform yardstick and each case would depend on it own facts. The ground(s) on which an order of assessment or demand is raised, is, indeed, an important factor. If the Commissioner feels that stay, sought for, would put the realization of amount in jeopardy, this can be a reasonable factor for refusal to grant stay. The order of refusal or acceptance must, however, assign reasons. Even the amount payable by the assessee is a relevant factor. If the amount is heavy and the revision application prima facie discloses the possibility of the revision being allowed, it may be treated as a case, which would constitute hardship and, may, therefore, entitle the Commissioner to grant a stay on such condition(s) as may be necessary for the purpose of securing the interest of the Revenue. Though quick realization of tax may be an ideal administrative necessity, this fact cannot alone be sufficient to refuse stay. To put it in simpler words, the order, granting stay, or refusing to grant stay, must disclose the reason (s) and must reflect that the Commissioner has applied his mind dispassionately and has exercised his discretion judiciously and not arbitrarily. The reference made by Dr. Saraf to the case of Hardeodas Jagannath [1961] 43 ITR 562 (GAU) is not entirely misplaced inasmuch as a Division Bench of this Court in Hardeodas Jagannath [1961] 43 ITR 562 (GAU) while dealing with the question of stay, as regards realization of assessed amount under the Income Tax Act pending disposal of appeal, observed and held as under: (page 596) If, in a particular case the question of exercise of discretion has not been considered properly by the Income Tax Officer, that might be a good ground for issuing a writ directing him to treat the assessee to be not in default. In the case of Aluminium Corporation of India Ltd. v. C. Balakrishnan [1959] 37 ITR 267 (Cal) this interpretation of the law was accepted by Sinha J. There an appeal had been preferred under Section 23 of the Wealth Tax Act and thereafter an application had been made to the Wealth Tax Officer for stay under Section 31(3) of the Act corresponding to Section 45 of the Income Tax Act. An application was made to the Commissioner of Wealth Tax praying for a direction not to treat the assessee to be in default till the disposal of the appeal which was rejected by him. A similar application was then made before the Wealth Tax Officer which was also rejected by him. The petition under Article 226 of the Constitution was filed in the High Court against that order which was allowed and the matter was sent back to the Wealth Tax Officer directing him to consider the matter on merits. It was observed by Sinha J., that the matter was no doubt in the discretion of the Wealth Tax Officer, but the discretion had to be exercised judicially and a judicial exercise of the discretion involved a consideration of the facts and circumstances of the case in all its aspects. The difficulties involved in the issues raised in the case and the prospects of the appeal being successful in one such aspect. The position and economic circumstances of the assessee is another. If the officer feels that the stay would put the realization of the amount in jeopardy that would be a cogent factor to be taken into consideration. The amount involved is also a relevant factor. If it is a heavy amount, it should be presumed that immediate payment, pending an appeal in which there may be a reasonable chance of success, would constitute a hardship. Quick realization of tax may be an administrative expediency, but by itself it constitutes no ground for refusing a stay. While determining such an application the authority exercising discretion should not act in the role of a mere tax gatherer. After having considered all the authorities, in my opinion, each case will depend upon its own circumstances. Quick realization of tax may be an administrative expediency, but by itself it constitutes no ground for refusing a stay. While determining such an application the authority exercising discretion should not act in the role of a mere tax gatherer. After having considered all the authorities, in my opinion, each case will depend upon its own circumstances. The extreme proposition that Section 45confers a power on the Income Tax Officer to stay realization of the tax dues when an appeal has been filed is a power coupled with the duty to grant such a stay whenever such an occasion arises, cannot be accepted. Section45 gives discretion to the Income Tax Officer not to treat the assessee as a defaulter. It may be that it casts a duty upon the Income Tax Officer to consider a prayer if made by the assessee on its own merits and to exercise his discretion judicially. It is very difficult to exhaustively lay down the circumstances under which the exercise of discretion can be said to be a judicial exercise. But there are certain relevant considerations which go to point out if the exercise of the discretion has or has not been judicial. It will really be a non-exercise of the discretion, if the Income Tax Officer has not considered the application at all or in considering the application has taken into consideration the matters which are extraneous to the object of the Act, or has failed to apply his mind to the relevant considerations. In such cases the exercise of his discretion may be considered to be no exercise of discretion at all and the High Court can issue a mandamus directing him to consider the application or to exercise his discretion according to law. The exercise of discretion in such case is capricious, arbitrary and unreasonable. The extreme proposition contended for by the Advocate-General that once an assessee has failed to pay up the tax demand, he is a defaulter and the Income Tax Officer is bound to proceed with the realization of the tax, and if he has acted within the ambit of his jurisdiction, this Court cannot interfere with the exercise of his discretion and issue a mandamus directing him to stay the realization, can also not be accepted. 8. 8. In the present case, though respondent No. 2 may be correct in insisting on deposit of the tax as well as the penalty, but the manner, in which the matter has been dealt with, is not at all satisfactory. As a matter of fact, the order directing payment of tax as well as penalty, which was initially passed, did not even indicate that the Commissioner had considered the grounds on which the prayer for suspension or stay as regards the demand notice had been made by the petitioner. 9. Be that as it may, it has, now, been submitted on behalf of the petitioner that the petitioner agrees to pay the remaining amount of Rs. 19 lakhs within a period of two months from today. The petitioner also agrees to furnish bank guarantee of Rs. 25 lakhs within a period of two months from today. In the facts and circumstances of the present case, this Court is of the view that it would be in the interest of justice to set aside the impugned order dated May 8, 2009 aforementioned and direct the petitioner to deposit the balance amount of Rs. 19 lakhs as well as the requisite bank guarantee of Rs. 25 lakhs within a period of two months from today. On the deposit of the said amount of Rs. 19 lakhs and also the bank guarantee, as directed hereinbefore, respondent No. 2 shall hear the revision petition and dispose of the same, in accordance with law, within a period of two months from the date, on which the petitioner complies with the directions, which have been given hereinbefore. It is also made clear that the petitioner shall co-operate with the respondents/authorities concerned in the early disposal of the revision proceedings. 10. With the above observations and directions this writ petition shall stand disposed of. 11. No order as to costs.