TMI Blog2016 (7) TMI 1300X X X X Extracts X X X X X X X X Extracts X X X X ..... the parameters laid down by the Supreme Court and this Court in various decisions is writ large. Merely saying that "considering the facts in totality 70% of the disputed tax liability shall remain stayed" does not by any cannon of judicial discipline satisfy the requirement of adherence to the principles laid down by the Supreme Court and this Court on the subject. Financial condition/hardship is an important consideration but then the businessmen, dealer etc. has to place relevant material in this regard showing dire financial condition. Income-tax Return are relevant material in this regard - Thus, the discretion vested in the learned Tribunal and First Appellate Authority in matters of interim relief under a Taxing Statute such as the one under consideration is to be exercised judicially and it should be guided by the principles of law enunciated by precedents as aforesaid and not in dis-regard thereof as has been done in the present case. This Court would have remanded the matter to the learned Tribunal to decide the same afresh - appeal allowed by way of remand. - TRADE TAX REVISION No. - 65 of 2016 - - - Dated:- 11-7-2016 - Hon'ble Rajan Roy,J. For the Appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Commercial Taxes, U.P. Lucknow; 2014 SCC Online Alld. 13691 (13) M/s Tata coffee Ltd. Vs Commissioner of Trade Tax and another; 2002 UPTC 156 (14) Writ Petition No. 2648 of 2012 (MS) M/s A.P. Enterprises vs Commissioner of Commercial Tax, U.P. and others. Sri Sanjeev Shankhyadhar learned counsel appearing on behalf of the Tax-department relied upon the decision of the Supreme Court in the case of Assistant Collelctor v. Dunlop India Ltd. ors reported in (1985) 1 SCC 260 and asserted that the said pronouncement has not been adhered to. The parameters which are required to be considered while deciding an application for interim relief, have been settled by the Supreme Court in a catena of decisions, yet this Court finds from the revisions which are filed before it including this revision that not only the first appellate authority but the learned Tribunal pass un-reasoned orders which do not disclose due and proper application of mind to the relevant parameters, ignoring the pronouncement of the Supreme Court and also those of this Court on the subject. It is indeed a deplorable state of affairs and it is high time that the learned Tribunal and the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stay order which relates to stay of recovery of any tax, fee or penalty by the learned Tribunal shall remain in force for more than thirty days unless the appellant furnishes adequate security to the satisfaction of the assessing authority concerned for the payment of the outstanding amount. Against the assessment order for the year 2012-13 a First Appeal was filed by the revisionist under Section 55 of the VAT Act, 2008. The First Appellate Authority vide its order dated 11.05.2015 stayed the realization of 70% of the disputed amount being ₹ 32,96,62,950/- with the condition that the businessman shall furnish security in respect of the stayed amount within thirty days to the satisfaction of the assessing authority. The said order reads as under:- यह स्थगन प्रार्थना पत्र श्री महेंद्र विक्रम सिंह ज्वा0 कमि0 (कारपो0 सेल) द्ë ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 79;षित किया एवं १२ फार्म ऍफ़ भी दाखिल किये गए है1 यह बिंदु वर्ष २००९-१०, २०१०-११ में विवादित था. तथा इस बिंदु पर वाद को प्रथम अपीलीय आदेश द्वारा प्रतिप्रेषित किया गया है. धनराशि रु० १०.३५ करोड़ फार्म-ऍफ़ एवं फार्म-सी जम ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6; दिन के अंदर स्थगित धनराशि की जमानत कर निर्धारण अधिकारी के सन्तोषानुसर दाखिल करेंगे अन्यथा यह आदेश स्वतः निरस्त हो जायेगा. On a bare perusal of the interim order passed as aforesaid complete disregard and non application of mind to the parameters laid down by the Supreme Court and this Court in various decisions is writ large. Merely saying that considering the facts in totality 70% of the disputed tax liability shall remain stayed does not by any cannon of judicial discipline satisfy the requirement of adherence to the principles laid down by the Supreme Court and this Court on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... अपील क़ी सुनवाई के समय अपीलकर्ता क़ी ओर से उनके विद्वान अधिवक्ता उपस्थित होकर बताया कि १७४९ चेसिस को लखनऊ प्लांट से चेसिस पर बॉडी फेब्रिकेशन करने के लिए बॉडी बिल्डर के पास स्टॉक ट्रांसफर किया गया एवं जिसके &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #2366;रा किये गए स्थगन में हस्तछेप वांछित नहीं है1 मेरे द्वारा उभय पक्षों को सुना गया एवं पारित कर निर्धारण आदेश, प्रथम अपीलीय अधिकारी द्वारा पारित स्थगन आदेश, द्वितीय अपील आधार, दाखिल स्थगन प्रार्थना पत्र एवं ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;त मैं यह उचित समझता हूँ कि प्रथम अपील के लंबन काल तक सम्पूर्ण विवादित धनराशि रु0 ३२,९६,६२,९५०/- (रु. बत्तीस करोड़ छिन्नवेय लाख बहसठ हज़ार नौ सौ पचास मात्र) के ९०(नब्बे) प्रतिशत अंश की वसूली का स्थगन अपीलकर्ता द्वारा & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 325;े साथ स्थगित की जाती है1 कि स्थगित धनराशि कि जमानत अपीलकर्ता सम्बंधित कर निर्धारण अधिकारी के सन्तोषानुसर उनके समक्ष नियमानुसार दाखिल करें अन्यथा स्थगन आदेश स्वतः निष्प्रभावी हो जायेगा1 A bare perusal of the order passed by the learned Tribunal shows that it has merely made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal principles--ex debito justitiae. Before any such order is passed the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him. In the case of Dalpat Kumar v. Prahlad Singh reported in (1992) 1 SCC 719, a Bench of two Hon'ble Judges observed in paragraph 6 as under:- ...... prima facie case , balance of convenience and irreparable loss are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by men's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. ......the court would be circumspect before granting the injunction and look to the conduct of the party, the probable injury to either party and whether the plaintiff could be adequately compensated if junction is refused. The aforesaid decisions were considered and followed by the Supreme Court in a subsequent decision in the case of Mahadeo Savlaram Shelke and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to grant or refuse to grant interim relief in proceedings other than suits also and there is no dispute in this regard. These observations of the Supreme Court should have been kept in mind by the Tribunal and the First Appellate Authority while passing the impugned order. A Bench of three Hon'ble Judges of the Supreme Court in the case of Assistant Collector of Central Excise vs. Dunlop India Ltd. And others reported in (1905) 1 SCC 260, also reiterated the aforesaid principles with reference to the earlier decisions rendered in Sri Samarias Trading Company Pvt. Ltd. v. S. Samuel and others reported in (1985) 2 SCR 24, Titagarh Paper Mills Co. Ltd. v. State of Orissa reported in (19983) 2 SCC 433, Union of India v. Oswal Woolen Mills Ltd. reported in (1984) 2 SCC 646 and Siliguri Municipality vs. Amlendu Das reported in (1981) 2 SCC 436. In the case of Siliguri Municipality (supra) the Calcutta High court had passed orders restraining the Siliguri Municipality from recovering a graduated consolidated rate on the annual value of buildings in terms of the amended provisions of the Bengal Municipal Act, which compelled the Supreme Court to observe that it was dismayed at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e pros and cons of the matter lest larger public interest is not jeopardized and institutional embarrassment is eschewed . The court further went on to observe as under:- Even assuming that the company had established a prima facie case, about which we do not express any opinion, we do not think that it was sufficient justification for granting the interim orders as was done by High Court. There was no question of any balance of convenience being in favour of the respondent-company. The balance of convenience was certainly in favour of the Government of India. Governments are not run on mere Bank Guarantees. We notice that very often some courts act as if furnishing a Bank Guarantee would meet the ends of justice. No governmental business or for that matter no business of any kind can be run on mere Bank Guarantees. Liquid cash is necessary for the running of a Government as indeed any other enterprise. We consider that where matters of public revenue are concerned, it is of utmost importance to realise that interim orders ought not to be granted merely because prima facie case has been shown. More is required. The balance of convenience must be clearly in favour of the making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rima facie case, balance of convenience, irreparable injury and other relevant factors discussed hereinabove. The order should disclose such application of mind. Cryptic observations as have been made in the present case, which have been noted in the earlier part of the judgment, do not satisfy these requirements. The passing of interim order in such a manner is highly objectionable. In Benara Valves Ltd. (supra) though, the Supreme Court was considering the language used in Section 35-F of the Central Excise Act wherein the word 'undue hardship to such person' and 'safeguard the interests of the Revenue' had been used but the observations made by it regarding 'undue hardship' should be kept in mind in other tax matters also. It opined that in Indian condition the expression 'undue hardship' is normally related to economic hardship. 'Undue hardship' means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. 'Undue hardship' is caused when the hardship is not warranted by the circumstances. For a hardship to be 'undue' it must be shown that the particular burden to observe or ..... 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