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2023 (6) TMI 581 - KERALA HIGH COURTStay - Waiver of pre-deposit - power of Appellate Authority to insist on the assessee paying more than 20% of the disputed tax as a condition for stay of recovery of the balance amount of disputed tax pending disposal of the appeal - HELD THAT:- There are force in the submissions of the learned Government Pleader that while on payment of 20% of the disputed amount of tax along with the collected tax, the assessee would be entitled to a stay against recovery of the balance amount of tax confirmed against it pending disposal of the appeal by the First Appellate Authority, the legislature does not prevent the Appellate Authority from insisting on a deposit of more than 20% of the disputed tax amount as a condition for a stay of recovery of balance amount pending disposal of the appeal, from an assessee who has chosen not to pay the 20% of the disputed amount of tax along with the collected tax or at least at the time of filing the appeal before the Appellate Authority. As per the statutory provisions, while the assessee has an option of payment of 20% of the disputed tax along with the collected tax, or at the time of filing the appeal before the Appellate Authority and seeking immunity from recovery proceedings for the balance amount of tax pending disposal of the appeal, he/she virtually takes the risk of losing the benefit of the said proviso, and a stay on deposit of 20% of the disputed tax, if he/she chooses to contest the stay application so as to obtain better terms (payment of less than 20% of the disputed tax) for the grant of stay of the balance disputed tax pending disposal of the appeal. Unless the assessee remits 20% of the disputed amount of tax along with the collected tax or at the time of filing the appeal, he/she will not be entitled to the benefit of the proviso, and he/she runs the risk of losing the benefit of the remittance of the 20% of the disputed amount of tax as a condition for grant of stay of recovery of the balance amount pending disposal of the appeal. This would be the legal position that flows from the main statutory provision, namely, Section 55(4) of the Act, which obliges an assessee to pay the entire amount of tax confirmed against him by the assessing authority as a condition for maintaining an appeal before the First Appellate Authority subject to the discretion to be exercised by the Appellate Authority in terms of First Proviso of Section 55(4). Since these appeals have been pending before this Court since 2017, and it is likely that the statutory appeals which were the subject matter of the Writ Petitions have since been finally disposed by the statutory authority, the findings in this judgment are solely for the purposes of clarifying the scope and ambit of the statutory provision and not to affect the decisions already taken by the Appellate Authorities in the individual appeals. Appeal disposed off.
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