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Sarvasri Shyam Ji Traders Fursatganj Amethi Thru Prop. Versus Commercial Tax Tribunal And Others

2016 (6) TMI 221 - ALLAHABAD HIGH COURT

Deposit of 50 per cent of demand during pendency of appeal - Petitioner has no balance amount towards credit in his bank account - Learned Tribunal has wrongly held that the petitioner has sufficient funds in his bank account and he shall deposit 50 per cent of the demand - Held that:- as the consistent view taken by this Court from time to time, I am of the view that the petitioner shall deposit 20 per cent of the demand raised during pendency of the first appeal and the First Appellate Court s .....

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wo Trade Tax Revisions arising out of common order, as such, they have been clubbed together and are now being decided together by a common order. The impugned order has been passed rejecting the second appeal by the learned Trade Tax Tribunal upholding the order passed by First Appellate Court, whereby the petitioner has been permitted to deposit 50 per cent of the demand during pendency of the appeal. Learned counsel for the petitioner submits that the assessing authority has raised demands of .....

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Lucknow which has been rejected by the impugned order. It is submitted that the learned Tribunal has wrongly held that the petitioner has sufficient funds in his bank account and he shall deposit 50 per cent of the demand as provided by the learned First Appellate Court. It is submitted that in fact the petitioner has no balance amount towards credit in his bank account. The figures shown in the bank account are with respect to debit and in fact relates to over drawn in the said bank account. Th .....

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LL.), (paragraph no.35) held as under:- "In view of the above, the aforesaid authorities make it clear that the Court should not grant interim relief/stay of the recovery merely by asking of a party. It has to maintain a balance between the rights of an individual and the State so far as the recovery of sovereign dues is concerned. While considering the application for stay/waiver of a pre-deposit, as required under the law, the Court must apply its mind as to whether the appellant has a st .....

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. The arguments that appellant is in a position to deposit or if he succeeds in appeal, he will be entitled to get the refund, are not the considerations for deciding the application. The order of the Appellate Authority itself must show that it had applied its mind to the issue raised by the appellant and it has been considered in accordance with law. The expression "undue hardship" has a wider connotation as it takes within its ambit the case where the assessee is asked to deposit th .....

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ould 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 Revenue, the Court or authority should exercise its duty under the law to take into consideration the rights and interest of an individual. It is also clear that before any goods could be subjected to duty, it has to be established that it has been manufactured and it is marketable and to prove that it is marketable, the burden i .....

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