2013 (3) TMI 230

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..... efore the appellate authority alongwith an application for stay. By order dated 1.11.2012 ( Annexure no.2) the Appellate Authority granted stay only to the extent the extent of 55% of tax liability which is to be deposited by the revisionist . The order dated 1.11.2012 passed by appellate authority has been challenged byrevisionist before the Tribunal by way of Second Appeal( Second Appeal No. 368 of 2012 year 2008-2009, Pooja Trading Company Vs. Commissioner, Commercial Tax , U.P. ) , dismissed by order dated 21.12.2012 passed by opposite party no.1/ Commercial Tax Tribunal( Bench 2) Commercial Tax , Faizabad Bench, Faizabad, hence the present revision has been filed. Learned counsel for the revisionist submits that financial condition o .....

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..... cceeds 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." There is no justification or reasons on the part of the appellate authority not to stay the tax liability which is to be recovered from the revisionist til .....

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..... ist on the ground that no prima facie case exists in favour of the revisionist in the present matter as such there in no illegality or infirmity in the order passed by the appellate authority/ Tribunal thereby not staying the tax which is to be paid by the revisionist in pursuance of assessment order , so the present revision filed by the revisionist liable to be dismissed. After hearing the learned counsel for the parties as well as the decisions given by Hon'ble Apex Court as well as this Court, I am of the considered opinion that the case of the revisionist is squarely covered from the aforesaid decisions. For the forgoing reasons, the revision is disposed of with the direction that the first appellate authority shall decide the first .....

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