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TMI Blog2020 (3) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... ation under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs; "(A) This Hon'ble Court may be pleased to issue a Writ of certiorari or as writ in nature of certiorari or any other appropriate writ or order quashing and setting aside impugned order dated 27.1.2020 (annexed at Annexure A) passed by the learned Gujarat Value Added Tax Tribunal as well as order dated 13.6.2019 passed by the first appellate authority; (B) This Hon'ble Court may be pleased to remand the matter to the first appellate authority for hearing on merits without insisting for any pre-deposit or security and stay against coercive recovery may also be ordered to be granted without insisting for any pre-deposit or security; (C ) Pending notice, admission and final hearing of this petition, this Hon'ble Court may be pleased to stay coercive recovery of dues raised by the reassessment order dated 30.3.2019 for the year 2013-14; (D) Ex parte ad interim relief in terms of prayer C may kindly be granted; (E) Such further relief (s) as deemed fit in the facts and circumstances of the case may kindly be granted in the interest of justice for which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the VAT Act for the year 2013-14 and Assessment Order under Section 34(2) of the VAT Act for the year 2014-15, wherein demand was raised by classifying the footwear sold by the writ applicant under the Residuary Entry No.87 of the Schedule II to the VAT Act. 5.6 It appears that the officers also imposed penalty at the maximum rate of 150% under Section 34(2) of the VAT Act as well as interest on the dues on the premise that those were illegally raised by the writ applicant. Thus, the dues, as under, have been raised against the writ applicant. Particulars 2013-14 2014-15 Vat Act Central Act Vat Act Central Act Tax 1,66,01,052 70256 2,18,11,889 4272 Interest 1,49,48,914 83559 1,57,24,529 3076 Penalty 2,49,07,868 - 3,27,35,249 - Total 5,64,57,834 1,53,815 7.02,71,667 7348 5.7 The writ applicant preferred first appeals challenging such assessment/reassessment orders. The First Appellate Authority insisted for pre-deposit for admission of the first appeal and stay against the recovery of the dues. As the writ applicant was not able to make the pre-deposit, all the first appeals came to be summarily dismissed. 5.8 The writ ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts of the case all the present Second Appeals are admitted and stay against recovery is granted on condition of appellant depositing 15% of tax amount towards pre-deposit within one month. On payment of aforementioned amount the stay against recovery shall come into operation." 5.10 Being dissatisfied with the order passed by the Tribunal, referred to above, the writ applicant is here before this Court with the present writ application. 6. Mr. Uchit N. Sheth, the learned counsel appearing for the writ applicant vehemently submitted that he has a strong case on merits. The issue is with regard to classification of the footwear. According to Mr. Sheth, although he has a very goods case on merits, yet because of financial crunch, his appeals will not be heard on merits. In other words, due to financial crunch, his client is unable to comply with the order passed by the Tribunal of making a pre-deposit of 15% of the demanded tax. According to Mr. Sheth, this will cause a serious prejudice to his client. Even otherwise, the business has been affected because of the current market conditions. Mr. Sheth would urge that in such circumstances, his client may not be asked to make a pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant stay of demand till disposal of first appeal on payment of 15% of the disputed demand, unless the case falls in the category discussed in para (B) hereunder. (B) In a situation where, (a) the assessing officer is of the view that the nature of addition resulting in the disputed demand is such that payment of a lump sum amount higher than 15% is warranted (e.g. in a case where addition on the same issue has been confirmed by appellate authorities in earlier years or the decision of the Supreme Court or jurisdictional High Court is in favour of Revenue or addition is based on credible evidence collected in a search or survey operation, etc.), or (b) the assessing officer is of the view that the nature of addition resulting in the disputed demand is such that payment of a lump sum amount lower than 15% is warranted (e.g. in a case where addition on the same issue has been deleted by appellate authorities in earlier years or the decision of the Supreme Court or jurisdictional High Court is in favour of the assessee, etc.), the assessing officer shall refer the matter to the administrative Pr. CIT/CIT, who after considering all relevant facts shall decide the quantum/pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kh. 14. In the overall view of the matter, we deem fit to reduce the requirement of depositing the disputed tax dues to enable the writ applicant to avail the benefit of the stay pending the appeal before the Appellate Authority to 5%. 15. We are informed that the order passed by the VAT Tribunal, which has been impugned in the present writ application, has to be complied within one month from the date of the order, and the period of one month expires tomorrow. The matter will now be notified before the Tribunal one month from tomorrow for the purpose of reporting of compliance. 16. In view of the order passed today, the writ applicant shall deposit 5% of the tax amount towards pre-deposit with the authority concerned within a period of 15 days. Once the amount is deposited, the writ applicant shall produce the Challan before the Tribunal and with the production of such Challan evidencing deposit of the amount, the Tribunal shall, thereafter, proceed to pass appropriate order in accordance with law. To the aforesaid extent, we modify the impugned order passed by the VAT Tribunal. It is needless to clarify that once the amount is deposited, as directed by this Court, the stay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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