Court No. - 33 Case :- SALES/TRADE TAX REVISION No. - 614 of 2010 Petitioner :- S/S. Ganesh Namkeen And Sweet House Respondent :- The Commissioner, Commercial Tax, U.P. Lkw. Petitioner Counsel :- Ashok Kumar,Praveen Kumar Respondent Counsel :- C.S.C Hon'ble Pankaj Mithal,J.
Heard learned counsel for the revisionist and learned Standing counsel for the
respondents.
Against the assessment order dated 26.2.2010 passed for the assessment year
2004-05 imposing tax liability of Rs.2,97,984/-, the revisionist has preferred
an appeal before the Additional Commissioner (Appeal) and the said appeal is
pending consideration. In the above appeal on the interim stay application an
order of 50% stay of the realization of the disputed tax was passed. The
revisionist was not satisfied by the limited stay order so granted. He
accordingly preferred further appeal to the Tribunal which has been disposed
of with the direction that during the pendency of the appeal before the
Additional Commissioner,(Appeals), there shall be stay of 75% of the
disputed tax.
Still not satisfied, the revisionist has preferred this revision.
The submission of the learned counsel for the revisionist is that the First
Appellate Authority as well as Tribunal in passing the impugned orders have
not taken into consideration the prima facie merits of the appeal and as to
whether the tax liability which has been imposed is likely to stand or not.
Even the hardship of the revisionist pleaded in depositing the tax so imposed
has not been considered. In support he has placed reliance upon a decision of
the Supreme Court reported in 2009 NTN (Vol.39) 126 M/s Pennar
Industries Ltd. vs. State of A.P. and others. In the said case the Apex Court
has observed that stay application should not be disposed in a routine manner
unmindful of the consequences flowing from the order requiring the assessee
to deposit full or part of the demand and the stay order has to be passed
keeping in mind the factual scenario involved. Further reliance has been
placed upon the decision of this court reported in 2009 NTN (Vol-40) 67
Kribhco Shyam Fertilizers Ltd. vs. Commissioner of Commercial Taxes,
Lucknow wherein also while considering the matter of grant of full stay the
court held that the Tribunal was not justified in only granting stay of 80% of
the disputed tax when the dealer has prima facie good case on the basis of
lack of financial distress.
I have gone through the order of the First Appellate Authority as well as that
of the Tribunal.
The Tribunal has not considered the prima facie merits of the revisionist case
nor have taken into account the financial distress of the revisionist in the
payment of the disputed tax amount. In this way the order of the Tribunal is
unreasoned and appears to have been passed in a routine and a casual manner.
In this view of the matter the said order cannot be sustained specially in view
of the authorities referred to above. The order of the Tribunal dated 20.7.2010
is set aside and the matter is remained to the Tribunal for deciding the appeal
of the revisionist afresh again on merits in accordance with law.
The First Appellate Authority is also set at liberty to proceed and decide the
appeal itself on merits finally as expeditiously as possible preferably within a
period of 6 months.
Revision is allowed accordingly.
Order Date :- 5.8.2010
piyush