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2016 (6) TMI 566 - ALLAHABAD HIGH COURT

2016 (6) TMI 566 - ALLAHABAD HIGH COURT - TMI - Application for stay - Commercial Tax Tribunal, Bench-I, Lucknow granted the interim stay only to the extent of 80% tax directing the appellant to deposit 20% tax during the pendency of first appeal - Held that:- In M/s Pennar Industries Ltd. vs. State of A.P. and others [2009 (2) TMI 457 - SUPREME COURT OF INDIA ] observed that if on cursory glance it appears that the demand raised has no leg to stand, it would be undesirable to require the assess .....

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inancial condition which are to be considered by them (appellate authority/tribunal) while passing the impugned orders on an application for stay pending in the first appeal. The said mandatory condition is to be taken into consideration while disposing of an application for interim relief moved by the assessee by the appellate authority as well as tribunal during the pendency of appeal.

For the foregoing reasons, the present revision is disposed of with a direction to the first appel .....

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parties, the present revision is being disposed of at the admission stage. Facts in brief of the present case are that initially assessment order dated 4.3.2016 has been passed against the revisionist by assessing authority for the A.Y.2013-14 (U.P.). Aggrieved by the said order, the revisionist filed first appeal along with an application for stay. By order dated 20.5.2016 (Annexure No.3), the appellate authority granted interim stay of 60% of the tax during the pendency of the appeal rest is .....

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ground, the present revisions has been filed. I have heard learned counsel for the parties and gone through the records. A Division Bench of this Court in the case of I.T.C. Ltd. vs. Commissioner (Appeals), Custom & Central Excise, Meerut-I 2005 (184) E.L.T. 347 (ALL.), (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 balan .....

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on merit. If an appellant having strong prima facie case, is asked to deposit the amount of assessment so made or penalty so levied, it would cause undue hardship to him, though there may be no financial restrain on the appellant running in a goods financial condition. 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 mus .....

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ourt 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 Revenue, the Court or authority should exercise its duty under .....

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.P. Tax on Entry of Goods in the Local Area Act, 2007 where the Tribunal had granted interim stay only to the extent of 80% of disputed tax, granted full stay as there was clear evidence to establish that disputed tax was not to be charged or paid. In the said case the Tribunal had granted stay to the extent of 80% and the balance of 20% was stayed by this Court with the direction for early disposal of the appeal. Even the Supreme Court in M/s Pennar Industries Ltd. vs. State of A.P. and others .....

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