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TMI Blog2016 (3) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... No.78 of 2014 for the assessment year 2009-10, claiming following substantial questions of law:- "a) Whether under the facts and circumstances of the case, the condition of pre-deposit under section 62(5) of the PVAT is unreasonable, arbitrary, discriminatory and ultra vires Articles 14 and 19(1)(g) of the Constitution of India? b) Whether on the true and correct interpretation of Section 68 (PVAT) read with Section 100 of CPC, the High Court can exercise the jurisdiction for waiving the condition of pre-deposit under section 62(5) of the PVAT?" 2. A few facts relevant for the decision of the controversy involved as narrated in the appeal may be noticed. The appellantcompany is engaged in the business of developing the land purchased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of motion alongwith notice regarding stay was issued. In the meantime, the respondent passed another assessment order dated 23.10.2013, Annexure A.5 creating additional demand of Rs. 2,04,85,306/- which was challenged in appeal before DETC(A) alongwith application for admission of appeal without pre-deposit of 25% of additional demand. The DETC(A) dismissed the appeal vide order dated 8.1.2014, Annexure A.8. On 24.1.2014, assessment order for the assessment year 2010-11 was made creating demand of Rs. 2,98,88,864/- comprising of Rs. 80,67,170/- as tax, Rs. 1,61,34,339/- as penalty and Rs. 56,87,354/- as interest. According to the appellant on 31.1.2014, the Apex Court in Dishnet Wireless Limited vs. The Commercial Tax Officer and another, W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rushing to the High Court under Article 226 of the Constitution of India, the grievance can be remedied at the stage of first appellate authority. As a sequel, it would follow that the provisions of Section 62(5) of the PVAT Act are directory in nature meaning thereby that the first appellate authority is empowered to partially or completely waive the condition of pre-deposit contained therein in the given facts and circumstances. It is not to be exercised in a routine way or as a matter of course in view of the special nature of taxation and revenue laws. Only when a strong prima facie case is made out will the first appellate authority consider whether to grant interim protection/injunction or not. Partial or complete waiver will be grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Tribunal, the said orders are set aside and the matter is remitted to the first appellate authority where the petitioners may file an application for interim injunction/protection before the appeals are taken up for hearing by the first appellate authority who shall adjudicate the application for grant of interim injunction/protection to the petitioner in the light of the observations made above. All the cases stand disposed of in the above terms." 5. In view of the above, the orders dated 8.1.2014 and 18.11.2014 and 18.11.2014, Annexures A.8 and Annexure A.14 passed by the DETC(A) and the Tribunal respectively are set aside. The first appellate court i.e. DETC(A) shall decide the application dated 27.11.2013, Annexure A.6 filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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