TMI Blog2008 (6) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... duty, Writ Petition rejected, petitioner directed to make pre-deposit - - - - - Dated:- 3-6-2008 - K.M. Joseph, J. REPRESENTED BY : S/Shri E.K. Nandakumar and A.K. Jayasankar, Counsel, for the Petitioner. None, for the Respondent. [Judgment]. Petitioner has approached this Court under Article 226 of the Constitution of India, seeking to challenge Ext. P6 order of the third respondent and to quash the same to the extent it directs the petitioner to effect pre-deposit of fifty per cent of the tax confirmed, within fifteen days of receipt of the order. Petitioner also seeks a direction to the respondents to refrain from taking any coercive steps for recovery of the tax amount confirmed against the petitioner by Ext. P3 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and the party must know what actually weighed with the Authority in directing deposit of fifty per cent, he contends. He submits that this is a clear case where barring some procedural infirmities, that may be there, in substance, the petitioner is entitled to the credit of nearly Rs. 85 Lakhs and under law it is entitled to adjust the said amount against the liability and if it is adjusted, this is a case where the petitioner would not be liable to pay any amount at all. He took me through the order of the Assessing Authority in an attempt to convince me that the petitioner has made out a strong prima facie case. He relied on the following decisions : (1) Bhikhubhai Vithalabhai Patel and Others v. State of Gujarat and Another [(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information that may be available with the State Government. The existence of relevant material is a precondition to the formation of opinion. The use of word may indicates not only a discretion, but an obligation to consider that a necessity has arisen to make substantial modifications in the draft development plan. It also involves an obligation to consider which of the several steps specified in sub-clauses (i), (ii) and (iii) should be taken. Dharamshala Suthra Anr. v. Administrator, Municipal Committee Anr. [JT 2008 (4) SC 571], related to the disposal of a Writ Petition by the High Court without independently recording reasons and the Court emphasised the need for reasons. Aravindakshan v. State of Kerala [2007 (3) KLT 440] w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication in such matters and the order has to be passed keeping in view the factual scenario involved. It is further stated in paragraphs 11, 12 and 15 which read as follows : 11. Two significant expressions used in the provisions are undue hardship to such person and safeguard the interests of Revene . Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interest of Revenue have to be kept in view. 12. As noted above, there are two important expressions in Section 35F. One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to be established by him. A mere assertio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the petitioner had specifically brought to the notice of the Authority and also made available materials that the petitioner-Company is in dire financial constraints. In fact, counsel would submit that the present loss is in the tune of nearly Rs. 28 Crores and though this was brought to the notice of the Authority, this issue was not addressed, he contends. On this submission made, I directed the counsel for the respondents to get specific instructions on the question whether the petitioner has specifically pleaded financial hardship and also produced materials. Today, when the matter was argued, counsel for the respondents brought to my notice that neither the petitioner had specifically pleaded financial hardship, nor was any mate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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