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2014 (4) TMI 495 - HC - VAT and Sales TaxDisposal of Stay/interim relief - Liability of tax – Tax on the sale of SIM cards and on the rentals received on the fixed telephone service – Tax under U.P. Tax on Entry of Goods in the Local Area Act, 2007 – Held that:- Judgment in I.T.C. Ltd. vs. Commissioner (Appeals), Custom & Central Excise, Meerut-I [2003 (10) TMI 70 - HIGH COURT OF JUDICATURE AT ALLAHABAD] followed - While considering the application for interim relief, the Court must examine all pros and cons involved in the case and further examine that in case recovery is not stayed, the right of appeal conferred by the legislature and refusal to exercise the discretionary power by the authority to stay/waive the pre-deposit condition would be reduced to nugatory/illusory - Undoubtedly, the interest of the Revenue cannot be jeopardized but that does not mean that in order to protect the interest of the Revenue, the Court or authority should exercise its duty under the law to take into consideration the rights and interest of an individual. Relying upon M/s Pennar Industries Ltd. vs. State of A.P. and others [2009 (2) TMI 457 - SUPREME COURT OF INDIA] - SC observed that if on cursory glance it appears that the demand raised has no leg to stand, it would be undesirable to require the assessee to pay full or even substantive part of the demand and the stay application should not be disposed of in a routine manner unmindful of the consequences - Appellate authority and Tribunal have not indicated its mind so far as the existence of the prima facie case on merits on appeal as well as the financial condition which are to be considered by them (appellate authority/tribunal) while passing the impugned orders on an application for stay pending in the first appeal - The said mandatory condition is to be taken into consideration while disposing of an application for interim relief moved by the assessee by the appellate authority as well as tribunal during the pendency of appeal - Therefore, revision is disposed of and Remitted back to the first appellate authority to decide the appeal filed by the assessee – Decided in favour of Assessee.
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