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TMI Blog2014 (2) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... ely required Assessee to furnish security of ₹ 8 lacs and odd on the estimated value of goods and thereafter the same was released. All these aspects have been taken note by the Assessing Authority and the existence of these facts is not disputed. The requirement of prima facie case, to be shown by appellant, is one but initial factor which would justify exercise of power of stay by Assessing Authority, but then to what extent stay order should be granted, it shall depend on multiple factors and reasons, which may vary from case to case - discrepancy in respect to one of the important document is admitted. Though the Assessee has attempted to explain it, but it has not been believed by the authority at the initial level. Now its credibility has to be examined by Appellate Authority. At the stage of granting stay order, it cannot be presumed that credibility must be believed by Appellate Authority, without anything more. In all the authorities cited at the bar in support of questions raised in these revisions to seek favour for Assessee, it has been held that Appellate Authority should apply its mind to the question whether stay order should be granted and if so, to what ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there being no material available on record with the assessing authority to show or establish that the applicant is suppressing the turnover of sale or purchase, hence in view of the law laid down by this Court in ITC Limited (supra) and in the case of Honda Siel Cards Ltd. Reported in 2010 UPTC 1152, the Tribunal was not justified in directing the applicant to deposit 20 % of the disputed amount of tax by completely overlooking the law laid down by this Court. (III) Whether as per Section 25 (1) of Act, 2008, the provisional assessment order can be passed only on the basis of material available on record with the assessing authority, when it appears to the assessing authority that the turnover of sale or purchase disclosed by the dealer is not worthy of credence? (IV) Whether in the present case, there is no material available on record with the assessing authority with respect to the undisclosed sales or purchases having been made by the applicant and hence no provisional assessment order could be passed only on the basis of seizure having been made against the applicant. Thus, the provisions of Section 25 (1) of Act, 2008 are not applicable in the present case of the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law raised and argued. 7. Sri Bharat Ji Agarwal, learned Senior Advocate, appearing for Revisionist, contended that no prima facie case was made out so as to authorize Assessing Authority to make a provisional assessment order under Section 25 (1) of Act, 2008 and, therefore, entire proceedings culminating in the order of assessment, appealed before the First Appellate Authority was patently illegal and looking to this aspect of the matter, appellate authorities must have allowed stay application of Revisionist-Assessee in entirety, by dispensing with requirement of deposit of disputed tax, altogether. Since both the appellate authorities have failed to do so, impugned orders suffer in law. He placed reliance on the authorities of this Court in I.T.C. Ltd. Vs. Commissioner (Appeals), Custom and Central Excise, Meerut-I 2005 (184) ELT 347 (All.) (DB) and Rathi Super Steel Limited Vs. Commissioner of Commercial Tax 2013 NTN (53) 204. 8. Learned Standing Counsel, however, opposed revisions and contended that at the stage of granting interim order with regard to question, whether the entire disputed amount should be stayed or not, Appellate Authority has to look into not only the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 2008, and the case for provisional assessment would not fall in either of Clauses of Section 25 (1), hence, no provisional assessment was justified, has been considered by Assessing Authority in the order dated 9.12.2013 wherein it has stressed upon importance and relevance of Form-38, Column-6 and has said:- English Translation by the Court: "Column 6 of Form-38 is a very important column, which correlates goods to other documents like bill/invoice etc. Its original copy, immediately after goods being imported, has to be submitted with the office and on this very basis, the tax is assessed. Only this correlates Form-38 with the bill. The intention of tax evasion is quite evident when other columns of the form were filled by the employee concerned and only column 6, providing basis for tax assessment, was left blank/incomplete. The distance of merchant's place of business from Delhi is so minimal that goods can easily be transported several times in a day using a single Form-38. These circumstances themselves are proofs of malafide intention." 11. The Assessing Authority has also followed a decision of this Court in Multitex Filtration Engineering Ltd. Vs. C.C.T. 2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cussed by the appellate authority at the stage when it has to consider the stay application as that would otherwise prejudice the interest of either of parties, but the only thing which Appellate Authority must show that it has applied its mind in considering the matter in accordance with law. The Tribunal has already granted indulgence to Assessee by staying requirement of deposit of disputed amount to the extent of 80 per cent and in the facts of this case, I do not find any patent error therein. 13. The First Appeal has been preferred under Section 55 of Act, 2008 and Sub-section (3) thereof provides that no appeal against an assessment order shall be entertained unless the appellant has furnished satisfactory proof of payment of amount of tax or fee due under the Act or admitted by him, whichever is greater. Sub-section (6) thereof, however, confers power upon Appellate Authority to stay realization of disputed amount of tax, fee or penalty till disposal of appeal. It is this power, which has been exercised by Appellate Authority while staying deposit of 50 per cent of disputed tax, which has been increased by Tribunal to 80 per cent and now Assessee is required to deposit on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Authority in the order appealed. No thumb rule can be applied to such matters, but one thing is clear that when we say that a prima facie case has to be looked into by Assessing Authority, it does not mean that it has to go to the extent of saying that it must find out and hold that Revenue has no case at all, despite the fact that an order is existing in its favour, which has been appealed by other side. A prima facie case means the grounds taken by the appellant, if considered ex-parte, there appears to be some force therein subject to what is said by other side, but that cannot be equated as if Revenue has no case. Simultaneously, it also cannot be presumed that when a prima facie case is found in favour of appellant, it would mean that Revenue has no case and, therefore, Assessee is entitled, as a matter of right, for grant of stay of the entire disputed amount. 16. There are two stages/phases of the matter. One, whether a stay order should be granted at all and secondly, to what extent the stay order should be granted. The requirement of prima facie case, to be shown by appellant, is one but initial factor which would justify exercise of power of stay by Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, it cannot be said that this question has arisen in this matter, since it is nothing but what has been held therein, but I do not find that it applies to the case in hand, since at this stage it cannot be said that two views are not possible or there is strong prima facie case in favour of Assessee-Revisionist so much so that Revenue has no case at all or that there is no prima facie case in favour of Revenue. The Question No. 1, therefore, is answered against Assessee. 18. Similarly, Questions No. 2 and 3 are also answered against the Assessee holding that a prima facie case has been made out by Revenue for making provisional assessment, carved out by Section 25 (1) (iii) and, therefore, watching interest of both the parties, it cannot be said that Tribunal was unjustified in directing Assessee-Revisionist to deposit 20 per cent of disputed amount and grating stay of 80 per cent thereof. Both these questions are also answered against the Revisionist-Assessee. 19. Question No. 5, in view of above discussion, is also answered against Revisionist. So far as Question No. 4 is concerned, I find, it ought not be answered at this stage, since appeal is pending before First A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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