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M/s Food Corporation Of India Versus Commissioner Of Commercial Tax U.P. Lucknow

2015 (8) TMI 1308 - ALLAHABAD HIGH COURT

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 authorities have not indicated its mind so far as the existence of the prima f .....

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ed 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 perused the record. With the consent of learned counsel for the parties, .....

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sited 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 appellate authority. In view of the above said factual background, the p .....

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e 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 of the said judgment, the appellant is likely to succeed on merit. If .....

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t 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. While considering the application for interim relief, the Court must exa .....

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ake 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 dealing with the prima facie merits of the case under U.P. Tax on En .....

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