TMI Blog2019 (6) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... J. For the Applicant : Nishant Mishra For the Opposite Party : C.S.C. ORDER ASHOK KUMAR,J. Heard Sri Nishant Mishra assisted by Sri Tanmay Sadh, learned counsel for the revisionist and Sri A.C. Tripathi, learned Standing Counsel for the sole respondent. This revision has been filed under Section 58 of the U.P. Value Added Tax Act, 2008 (hereinafter referred to as 'the Act') for the assessment year 2015-16 under the U.P. VAT Act. The applicant has challenged the order passed by the Commercial Tax Tribunal, Bench-II, Ghaziabad dated 14.05.2019 by which the Tribunal has granted conditional stay to the extent of 80% of the disputed amount of tax during pendency of first appeal before the first appellate authority. The claim of the applicant is that, in fact, the applicant is not at all liable to pay any amount in view of overriding provisions of Insolvency Bankruptcy Code, 2016. The applicant M/s UltraTech Nathdwara Cement Limited is a Company having its registered office at Block D, 4th Floor, 22 Camac Street, K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the business. It is admitted fact that certain loose papers were resumed by the survey authorities which includes the loading slip used by the ex- C F Agent, claimed that the same were used by him for his personal business transactions. Since the BCL was unable to repay it's debts, one of the financial creditor i.e. Bank of Baroda filed a petition under Section 7 of the Insolvency and Bankruptcy Code, 2016 for initiation of Corporate Insolvency Resolution Process, before National Company Law Tribunal, Kolkata (in short NCLT). The said petition was admitted by NCLT, Kolkata and during pendency of the said petition and insolvency process, the present applicant as well as one M/s Rajputana Properties Pvt. Ltd. submitted their resolution plans before the Resolution Professional for Consideration of COC. The NCLT, Kolkata vide order dated 02.05.2018 has held that the resolution plan submitted by the other party M/s Rajputana Properties Pvt. Ltd. was discriminatory and contrary to the scheme of Code. Hence the NCLT directed the COC to consider the other resolution plans including the plan submitted by the present applicant. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below particularly before the assessing authority that in view of above no amount is payable for any transaction prior to transfer date and therefore, it was requested that the assessment proceeding for the present assessment year 2015-16 against M/s BCL may be closed. Learned counsel for the applicant submits that specific objection was filed by the applicant before the assessing authority bringing on record the entire facts and prayed that no assessment can be made and no demand therefore can be created in terms of the resolution plan, which has overriding effect in view of the provision of the Code even then the assessing authority has passed the assessment order dated 23.02.2019 by which he has created huge illegal demand of tax of ₹ 2,32,60,000/-. The order of the assessment dated 23.02.2019 has been challenged by the applicant under Section 55 of VAT Act before the first appellate authority. An application under Sub-Section (6) of Section 55 was moved before the first appellate authority for stay of the realisation of the impugned demand. The first appellate authority while entertaining and deciding the interim applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t running in a good 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 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. While considering the application for interim relief, the Court 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 predeposit 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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