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2014 (1) TMI 1154 - HC - VAT and Sales TaxStay application - 75% stay already granted to applicant - Held that:- where a statutory appeal has been entertained or admitted for consideration and order impugned is likely to visit the party with civil consequences judicial approach requires that during the pendency of appeal the operation of such order must be suspended in order to avoid undue hardship to the party concerned and to preserve the rights of the parties pending adjudication of the lis - Court should not grant interim relief/stay of the recovery merely by asking of a party. It has to maintain a balance between the rights of an individual and the State so far as the recovery of sovereign dues is concerned. While considering the application for stay/ waiver of a pre-deposit, as required under the law, the Court must apply its mind as to whether the appellant has a strong prima facie case on merit. In case, it is covered by the judgment of a Court/ Tribunal binding upon the Appellate Authority, it should apply its mind as to whether in view of the said judgment, the appellant is likely to succeed on merit, if an appellant have strong prima facie case, is asked to deposit the amount of assessment so made or penalty so levied, it would cause undue hardship to him, though there may be financial restrain on the appellant running in a good financial condition. The argument that appellant is in a position to deposit or if he succeeds in appeal, he will be entitled to get the refund, are not the considerations for deciding 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. Assessee has already got the stay of the demand of 75%. Now, there is no justification to grant further stay in the matter - First Appellate Authority directed to decide the First Appeal within a period of two months from today. Till disposal of the appeal, the status quo, as on today, shall be maintained - Decided in favour of assessee by way of remand.
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