TMI Blog2023 (12) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... 984 (1) TMI 63 - SUPREME COURT ] where it was held that the main purpose of passing an interim order is to evolve a workable formula or a workable arrangement to the extent called for by the demands of the situation keeping in mind the presumption regarding the constitutionality of the legislation and the vulnerability of the challenge, only in order that no irreparable injury is occasioned. The Court has therefore to strike a delicate balance after considering the pros and cons of the matter lest larger public interest is not jeopardized and institutional embarrassment is eschewed. In congruent facts, identical interim orders are liable to be granted, otherwise an anomalous situation will be created where similarly situated persons will be accorded differential treatment leading to discrimination and violation of Article 14 of the Constitution of India. The second aspect which requires to be given weight is that the assessee cannot be faulted for what is essentially a failure of the Government. The statute contemplates deposit of 10% plus 20% of the disputed tax liability before the first and second appellate authorities respectively. By imposing a demand of 50% in these matters, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expiry of the period of return is unsound on principle and facts. The maxim lex non cogit ad impossibilia means that the law does not compel a man to do that which he cannot possibly perform. In the present appeals, the applications were moved in the High Court for stay of proceedings. The respondents challenged the validity of the Act, and, therefore, asked for an injunction restraining the State from taking proceedings under the Act. At no stage, did the State ask for variation or modification of the order of injunction. It is well known that if it is brought to the notice of a court that proceedings are likely to be barred by time by reason of any order of injunction or stay the court passes such suitable or appropriate orders as will protect the interest of the parties and will not prejudice either party. Even when certificate to appeal to this Court was granted on August 1, 1963, the State did not ask for any order for stay of operation of the judgment. That is quite often done. For the first time, on August 10, 1964 the State filed an application for stay of operation of the judgment of the High Court. The State did not take steps at the appropriate time. This Court on Oc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the First Appellate Authority. He submitted that the petitioner is ready and willing to deposit 20% of the remaining amount of tax in dispute. Accordingly, the petitioner is permitted to deposit 20% of the remaining amount of tax in dispute and as soon as the said amount is deposited, the recovery proceedings for the balance amount shall remain stayed as provided under sub-section (9) of Section 112 of the Act. The Revenue, which is already represented, may file counter affidavit within three weeks. List in the third week of January, 2020. In M/S Tulsi Steels vs. State Of U.P. And 2 Others (Writ Tax No. - 953 of 2022) , the following order was passed: 1. Present petition has been filed against the order of the First Appeal Authority. Since the Tribunal has yet not been constituted, the present petition is being entertained at this stage. 2. Matter requires consideration. 3. All respondents may file counter affidavit within a period of six weeks. Petitioner shall have two weeks thereafter to file rejoinder affidavit. 4. List thereafter. 5. In the meanwhile, it is directed that the petitioner shall deposit 30% of the disputed amount of tax in accordance with Section 112(8) of the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable to be extracted hereunder: Section 112. Appeals to Appellate Tribunal ....... (8) No appeal shall be filed under sub-section (1), unless the appellant has paid-- (a) in full, such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as is admitted by him; and (b) a sum equal to twenty per cent. of the remaining amount of tax in dispute, in addition to the amount paid under sub-section (6) of section 107, arising from the said order, [subject to a maximum of fifty crore rupees,] in relation to which the appeal has been filed. The practices in go in other High Courts will also fortify the narrative. The Patna High Court in M/s Cohesive Infrastructure Developers Pvt. Ltd. vs. The Central Board of Indirect Taxes and Customs and Others (Civil Writ Jurisdiction Case No. 15438 of 2023) while deciding the interim application in similar facts also made the following directions: 6. This Court is, therefore, inclined to dispose of the instant writ petition in the following terms:- (i) Subject to deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, if not already deposited, in addition to the amount deposited earlier under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act. The petitioner cannot be deprived of the benefit, due to non- constitution of the Tribunal by the respondents themselves. The recovery of balance amount, and any steps that may have been taken in this regard will thus be deemed to be stayed. It is not in dispute that similar relief has been granted by this Court in the case of SAJ Food Products Pvt. Ltd. vs. The State of Bihar Others in C.W.J.C. No. 15465 of 2022. (ii) The statutory relief of stay, on deposit of the statutory amount, however in the opinion of this Court, cannot be open ended. For balancing the equities, therefore, the Court is of the opinion that since order is being passed due to non- constitution of the Tribunal by the respondent-Authorities, the petitioner would be required to present/file his appeal under Section 112 of the B.G.S.T. Act, once the Tribunal is constituted and made functional and the President or the State President may enter office. The appeal would be required to be filed observing the statutory requirements after coming into existence of the Tribunal, for facilitating consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be said to apply. However, the need for consistency of approach and uniformity in the exercise of judicial discretion respecting similar causes and the desirability to eliminate occasions for grievances of discriminatory treatment requires that all similar matters should receive similar treatment except where factual differences require a different treatment so that there is assurance of consistency, uniformity, predictability and certainty of judicial approach. The imperative of giving identical treatment to litigants in cases involving congruent issues was also underlined by the Supreme Court in Bir Bajrang Kumar v. State of Bihar reported at AIR 1987 SC 1345 by holding thus: 1. Special leave is granted. Heard the counsel for the parties. After going through the record of the case it appears that one of the cases involving an identical point has already been admitted by the High Court but another identical petition was dismissed by the same High Court. This, therefore, creates a very anomalous position and there is a clear possibility of two contradictory judgments being rendered in the same case by the High Court. In these circumstances, we allow this appeal and set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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