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TMI Blog2010 (6) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... YOGNEDRA KUMAR SANGAL J. Heard learned counsel for the revisionist, the learned counsel for the opposite party Department and perused the record. This is a revision filed by the assessee/revisionist with a prayer to set aside the order of the lower court/Tribunal and to grant 100 per cent stay of the recovery of disputed tax for the assessment year of 2009-10 (third quarterly) till the disposal of the first appeal. The record shows that the assessing authority has imposed the tax liability of Rs. 2,05,74,974 on the basis of the record available to it. To challenge this order of the assessing authority, a first appeal was filed on behalf of the revisionist saying that the assessment order has been passed in ex parte proceedings with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant into consideration and his financial position 70 per cent stay of recovery held in lower side and enhanced the stay of recovery up to 90 per cent. No finding of the second appellate court is there whether the compliance of section 55(3) and (6) of the U.P. Value Added Tax Act, 2008 was complied or not by the appellant/assessee. The assessee/revisionist again having grievance with this order of second appellate court, filed this revision. The learned counsel for the opposite party Department argued that when the first appeal is still pending and the matter is to be seen by the first appellate court on the merits, a revision against the order of the second appellate court is not maintainable. Further, it was argued that there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the settled proposition of this court in a case where evidence to establish that the disputed tax which is being charged being paid or is not payable then the financial capacity of the assessee is not the sole criteria for either accepting or rejecting the prayer made by the assessee for stay or waiver of pre-deposit. It is not clear from the order passed by the first appellate court that the court has considered these pre-conditions before passing the order of stay of recovery of 70 per cent of the tax assessed by the assessing officer. The same was repeated by the Tribunal while passing the order in second appeal. It simply referred to the prayer of the assessee regarding his financial condition and not taken into consideration th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State collection of revenue is also to be seen. A direction is required to the first appellate court to dispose of the appeal expeditiously without any further delay. If the first appellate court finds that compliance of section 55(6) has been made and there is sufficient ground for condoning the delay in filing the appeal, the first appellate court after admitting the appeal decide the same within a period of 45 days (including the period of disposal of the application under section 5 of the Limitation Act) after seeing that ten per cent of the tax assessed by the assessing officer is deposited or not. If this is still not deposited the appellant will not be permitted to proceed in the appeal. Copy of the order be sent to the first app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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