9911796707
TMI Blog1994 (1) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... mind. 2.. In respect of the assessment year 1988-89 while finalising the assessment under section 10 of the Act the Assistant Commissioner, Commercial Taxes (AntiEvasion), Jaipur, has created a demand of Rs. 8,22,983 vide his order dated September 3, 1993. The assessee filed an appeal against the order and during the pendency of the appeal an application was made to the Additional Commissioner for grant of stay. The Additional Commissioner in his order dated January 3, 1994, observed that he has gone through the assessment order, grounds of appeal and relevant facts in connection therewith and decided the stay application. The recovery of penalty and interest was stayed on the condition of making the full payment of tax immediately. 3.. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viso, give the applicant, a reasonable opportunity of being heard, and shall also record reasons for such rejection." According to the scheme of the Act the assessment is to be made by the Assistant Commercial Taxes Officer, Commercial Taxes Officer and Assistant Commissioner, Commercial Taxes. An appeal lies to the Deputy Commissioner of Commercial Taxes (Appeals) under section 13 of the Act. Second appeal against the order of the Deputy Commissioner (Appeals) lies to the Sales Tax Tribunal under section 14 of the Act. Against such an order passed in that appeal revision lies to the Rajasthan High Court under section 15. The appeal to the Sales Tax Tribunal is only in respect of the order specified under section 14. Under section 15-A, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough for the purpose of prima facie case he has to take into consideration the possibility of success in appeal, but it cannot be expected that the Commissioner exercises his powers under section 11(3) in a manner so as to make the appeal itself as nugatory or infructuous by observing the merit and demerit of the case. The Commissioner is not to adjudicate on merit as to whether the applicant is entitled for relief in accordance with law or on the basis of evidence produced or even to discuss the merits of the case in the stay order. He has to see prima facie case whether there is possibility of the success in appeal without discussing, agreeing or disagreeing with the contention of the learned counsel for the petitioner. If any observati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be taken into consideration is that in accordance with the provisions of section 23 of the Act now the assessee is entitled to interest for the refund of the amount at the rate of 15 per cent per annum from the date of deposit and thus if any amount has been deposited in excess the applicant is entitled for the interest from the date of the deposit till the date of actual payment. The provisions of interest have been held to be automatic and thus the Legislature has safeguarded the interest of the person in case any amount deposited is ultimately found to be not payable. 5.. Reliance has been placed on the case of Vishnu Traders v. State of Haryana 1993 STI 23 (SC) wherein it was held that in the matters of interlocutory orders princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eject the application by recording the reasons to that effect without observing anything on the merits of the case. If he is satisfied that the petitioner has prima facie case, balance of convenience and irreparable loss then he may grant the stay and he will also be free to grant stay in part and in that case in respect of the amount for which stay is not granted the three ingredients mentioned above will be required to be recorded in the order. Learned counsel for the respondents raised objection that the writ petition is not maintainable since the appeal is pending, but I am of the view that the writ petition could be entertained only with regard to the legality of the order passed by the Additional Commissioner and the matter on merits ..... X X X X Extracts X X X X X X X X Extracts X X X X
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