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2015 (8) TMI 1308 - ALLAHABAD HIGH COURT

2015 (8) TMI 1308 - ALLAHABAD HIGH COURT - [2016] 88 VST 54 (All) - Waiver of pre-deposit - appellate authority granted interim stay of 60% of the tax during the pendency of the appeal rest is to be deposited by assessee in pursuance of the assessment/penalty order. - Held that:- Keeping in view the settled position of law on the point in issue and from the perusal of the appellate order passed by the appellate authority/appellate tribunal thereby passing the impugned orders, the said authoritie .....

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eal. - For the foregoing reasons, the present revision is disposed of with a direction to the first appellate authority to decide the appeal filed by the assessee expeditiously say within a period of three months from the date of receiving a certified copy of this order. - TRADE TAX REVISION No. - 54 of 2015 - Dated:- 28-8-2015 - Anil Kumar, J. Counsel for Applicant :- Pradeep Agrawal JUDGMENT Heard Shri Pradeep Agrawal, learned counsel for the revisionist, learned Standing Counsel and perus .....

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60% of the tax during the pendency of the appeal rest is to be deposited by assessee in pursuance of the assessment/penalty order. Aggrieved by the aforesaid first appellate order, the revisionist filed Second Appeal No.364/2015 for the Assessment Year 2011-12. By order dated 13.7.2015, learned Commercial Tax Tribunal, Bench-I, Lucknow granted the interim stay only to the extent of 70% tax directing the appellant to deposit 30% tax during the pendency of first appeal filed before the first appe .....

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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 strong prima facie case on merit. In case it is covered by the Judgment of a Court/Tribunal binding upon the Appellate Authority, it should apply its mind as to whether in view o .....

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cation. 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 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. Whil .....

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, 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 is on the Revenue and not on the manufacture." In Kribhco Shyam Fertilizers Ltd. Vs. The Commissioner of Commercial Taxes, Lucknow 2009 NTN (Vol. 40) - 67 this Court while .....

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