TMI Blog2014 (4) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... scretionary 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on the rentals received on the fixed telephone service and a huge liability of tax was created. Aggrieved by the said order, the revisionist filed first appeal along with an application for stay. By order dated 31.12.2013 (Annexure No.5), the appellate authority granted interim stay of 50% of the tax during the pendency of the appeal. Rest is to be deposited by assessee in pursuance of the assessment/penalty order. Aggrieved by the aforesaid first appellate order, the revisionist filed Second Appeal No.3/2014. By order dated 22.01.2014, learned Commercial Tax Tribunal, Bench-I, Lucknow granted the interim stay only to the extent of 80% tax directing the appellant to deposit 20% tax/penalty during the pendency of first appeal filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the application. The order of the Appellate Authority itself must show that it had applied its mind to the issue raised by the appellant and it has been considered in accordance with law. The expression undue hardship has a wider connotation as it takes within its ambit the case where the assessee is asked to deposit the amount even if he is likely to exonerate from the total liability on disposal of his appeal. Dispensation of deposit should also be allowed where two views are possible. 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 discr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the demand and the stay application should not be disposed of in a routine manner unmindful of the consequences. Keeping in view the settled position of law on the point in issue and from the perusal of the appellate order passed by the appellate authority/appellate tribunal thereby passing the impugned orders, the said authorities 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 mo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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