2013 (7) TMI 493 - HC - VAT and Sales Tax

Partial stay of disputed tax - Non consideration of relevant facts by Tribunal - Held that - During the pendency of the statutory appeal, the Tribunal is required to look into the prima facie merit of the case as well as financial condition of the revisionist because the condition of deposit will make the purpose of filing of appeal itself nugatory - Decision passed by Tribunal Modified - Decided in favour of Assessee.

Summary

Issues:
Revision under Section 58 of U.P. Value Added Tax challenging penalty imposition without material, stay application for disputed tax, financial stringency consideration in stay order, proper application of principles for stay, relevance of financial condition in waiver cum stay decision.

Analysis:
The judgment pertains to a revision under Section 58 of U.P. Value Added Tax challenging an order related to the Assessment Year 2012-2013. The revisionist, a registered dealer of Pukar Gutkha and Pan Masala, contested a penalty imposed by the Assessing Officer without supporting material. The revisionist appealed and sought a stay on 70% of the disputed tax, which was partially granted by the Additional Commissioner (Appeal)-II. Subsequently, the Trade Tax Tribunal modified the stay order to 80% of the disputed tax. The revisionist, feeling aggrieved, filed a second appeal before the Tribunal, claiming that financial stringency and relevant facts were not adequately considered in the decision. The revisionist argued that undue financial hardship must be taken into account to prevent the appeal process from being futile.

The revisionist contended that the Tribunal's decision lacked proper consideration of the financial stringency demonstrated in the affidavit and the revisionist's bank account details. The revisionist emphasized that the power of stay should be judiciously exercised, following sound principles and not as a routine procedure. Citing legal precedents such as Income Tax Officer v. M.K. Mohammad Kunhi, Mehsana District Cooperative Mill Pvt. Ltd. v. Union of India, and Shri Kihota Hollohon v. Mr. Zachilhu, the revisionist argued for a more thorough evaluation of financial conditions in stay orders.

Drawing from the judgment in Tata Coffee Ltd. v. Commissioner of Trade Tax, the revisionist highlighted the importance of considering both the prima facie merit of the case and the applicant's financial condition in waiver cum stay decisions. The Tribunal was reminded of its obligation to assess the financial hardship and other relevant factors during the pendency of statutory appeals to prevent the appeal process from becoming meaningless.

In light of the specific circumstances, the Court partially allowed the writ petition, modifying the Tribunal's order to stay 90% of the disputed tax until the first appeal's disposal. The revisionist was directed to deposit 10% of the disputed tax within a month and provide security for the remaining amount to the assessing authority's satisfaction.