2021 (2) TMI 149 - HC - VAT and Sales Tax

Condition of deposit of amount for grant of stay - Whether the discretion used by the Tribunal in placing condition of deposit of amount for grant of stay was perverse considering the order passed by the Tribunal in identical facts and circumstances in VAT Second Appeal granting complete stay without deposit? HELD THAT - Normally, we would not interfere with the use of discretion by the Tribunal and the amount also does not prima facie appear to us as an unreasonable condition, however, the argument of the learned Counsel for the Appellant that in identical set of facts and arguments the discretion has been used differently will have to be taken note of - However, it appears that the Appellant had not placed the order dated 7 March 2017 passed in VAT Second Appeal Nos.43 to 46 of 2017 before the Tribunal when the impugned order in the present appeal was passed. Therefore, the Tribunal had no occasion to consider its earlier use of discretion in the alleged identical set of facts. The appropriate course of action would be set aside the impugned order passed by the Tribunal, restore the appeal filed by the Appellant, permit the Appellant to place on record the order dated 7 March 2017 passed in VAT Second Appeal Nos.43 to 46 of 2017 so that the Tribunal has the benefit of the said order, and a fresh decision can be taken. The appeal is allowed

Summary

Issues:
1. Question of law regarding the discretion used by the Tribunal in placing a condition of deposit for the grant of stay.
2. Appeal against the order passed by the Maharashtra Sales Tax Tribunal, Mumbai in VAT Appeal No.593 of 2017.

Analysis:
1. The Appellant challenged the order directing the deposit of a specific amount for stay granted by the Tribunal. The Appellant argued that the Tribunal's discretion was arbitrary as in similar cases, complete stay was granted without any deposit. The Court noted that the Tribunal's discretion is generally not interfered with, but the differing use of discretion in identical cases raised concerns. The Court observed that the Tribunal did not have the opportunity to consider its earlier decision due to the Appellant not presenting the relevant order. Consequently, the Court set aside the impugned order, restored the appeal, and directed the Appellant to provide the necessary order for fresh consideration.

2. The Court clarified that its decision did not conclusively establish the similarity of facts between the present case and previous cases cited by the Appellant. It allowed the Tribunal to assess any distinguishing features. The Court allowed the appeal, quashed the impugned order, and returned the case to the Maharashtra Sales Tax Tribunal for reconsideration. The interim order was to remain in effect until the Tribunal's fresh decision. No costs were awarded in this matter.