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2014 (2) TMI 858 - HC - VAT and Sales TaxWaiver of pre deposit - whether requirement of 20 per cent of disputed tax by Assessee having not been stayed by the authorities below, have they committed any patent error of law and can it be said that impugned orders have been passed without any application of mind or proper application of mind - Held that:- occasion to pass provisional assessment order has been derived by Deputy Commissioner from the factum that in the checking conducted by Mobile Squad on 22.8.2013, vehicle no. HR 38Q 1200 was found loaded with 46.360 metric ton of H.R. Coils. The driver of vehicle possessed consignment notes, and, besides other documents, Form-38 having Column 6 completely blank. It did not mention bill number and date in both the copies possessed by Driver. Keeping Form-38 blank in the above column may help Assessee in reuse of Form to evade tax and, therefore, in addition to violation of Section 50 of Act, 2008, it is also in contravention to the Commissioner's Circular No. 0910015 dated 3.6.2009. The Mobile Squad Officer issued a show cause notice and ultimately required Assessee to furnish security of ₹ 8 lacs and odd on the estimated value of goods and thereafter the same was released. All these aspects have been taken note by the Assessing Authority and the existence of these facts is not disputed. The requirement of prima facie case, to be shown by appellant, is one but initial factor which would justify exercise of power of stay by Assessing Authority, but then to what extent stay order should be granted, it shall depend on multiple factors and reasons, which may vary from case to case - discrepancy in respect to one of the important document is admitted. Though the Assessee has attempted to explain it, but it has not been believed by the authority at the initial level. Now its credibility has to be examined by Appellate Authority. At the stage of granting stay order, it cannot be presumed that credibility must be believed by Appellate Authority, without anything more. In all the authorities cited at the bar in support of questions raised in these revisions to seek favour for Assessee, it has been held that Appellate Authority should apply its mind to the question whether stay order should be granted and if so, to what extent. The power should not be exercised mechanically or on conjectures and surmises or in an arbitrary manner. Simultaneously, it also cannot be said that mere existence of a prima facie case, bereft of all other relevant factors, would justify grant of stay order to the extent of 100 per cent. After all, Appellate Authority has to adopt a balancing approach in favour of both the parties and cannot proceed to go out and out to support appellant's case though correctness of the order passed by authority below is yet to be examined by it - revisionist, however, has failed to satisfy this Court also that Assessee must have been granted 100 per cent stay - Decided against assessee.
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