TMI Blog2015 (3) TMI 1001X X X X Extracts X X X X X X X X Extracts X X X X ..... is to be granted to it. The order of the first appellate authority was modified and the stay was granted to the extent of 85% of the disputed tax liability. Again, there is no consideration of prima facie case and the other relevant factors. - Impugned order is set aside - Matter remanded back - Decided in favour of assessee. - Trade Tax Revision No. - 114 of 2014, Trade Tax Revision No. – 115 to 130 of 2014 - - - Dated:- 5-11-2014 - Hon'ble Manoj Kumar Gupta,JJ. For the Applicant : Bharat B. Raichandani,Ghanshyam Chaudhary For the Respondent : C.S.C. ORDER These Revisions filed under Section 58 of the U.P. Value Added Tax Act, 2008 (for short U.P. VAT Act, 2008 ) raise common questions of facts and law. Heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant vehemently contended that the first appellate authority as well as the Tribunal committed a manifest error of law in not considering the prima facie case of the applicant, which is an essential ingredient to be taken into consideration, while deciding the stay application. It is submitted that the impugned orders are based on ipse dixit of the authorities. The first appellate authority, without recording any reason, granted stay only to the extent of 60%, which was later on enhanced to 85% by the Tribunal, though the applicant has a very strong prima facie case and was entitled for complete stay. It is submitted that the dispute essentially is whether the applicant is liable to pay VAT on the installation charges being realised by it, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal were required to apply their mind whether the applicant has a strong prima facie case or not, and also whether the case of the applicant is covered by any judgment of a higher court binding on it. It is submitted that inspite of the applicant having placed reliance on the above mentioned judgments of this Court as well as Apex Court, the first appellate authority and the Tribunal, have totally ignored from consideration the ratio laid down in those judgments. In this regard, reliance has also been placed on a judgment of this Court in the case of Anand Motors Agencies Ltd. Vs. Commissioner of Commercial Tax, U.P., Lucknow (2013) 66 VST 506 (All), wherein, it is held as under:- A Division Bench of this Court in the case of I.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 discretionary 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry consideration regarding existence of prima facie case has not at all been taken into consideration. Absolutely, no finding has been recorded either by the first appellate authority or by the Tribunal. All that the first appellate authority has mentioned in the impugned order is that the applicant stated about its financial hardship, which contention was objected to by the Revenue. It is not discernable as on what consideration, it directed stay of 60% of the amount. Similarly, the Tribunal held that there appears to be some force in the contention of the applicant and, therefore, some relief is to be granted to it. The order of the first appellate authority was modified and the stay was granted to the extent of 85% of the disputed tax li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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