9911796707
Advanced Search 
TMI Blog2014 (8) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... abanki (Khand-I) to Kanchanpur Matiyari Chauraha, Faizabad Road, Lucknow (Khand-II). On 27.6.2014 a survey was conducted at the business premises of the petitioner at Masauli, Barabanki by the Dy. Commissioner, Commercial Tax, Lucknow where stock of Menthal Oil as well as books of account were found. The report of the Dy. Commissioner, Commercial Tax is at page 37 of the paper book of the writ petition, which clearly mentions that the entire stock register were found at Masauli, Barabanki and the stock of Menthal Oil weighing 43,920 kg. was also found there. An inspection was also conducted at the Head Office of the Company at Kanchanpur, Matiyari Chauraha, Faizabad Road, Lucknow (Khand-II). However, on 4.7.2014 a show cause notice was issued by the Dy. Commissioner, Commercial Tax, Lucknow to the petitioner to show cause to as why his registration certificate under the U.P. VAT Act 2008 be not cancelled on the ground that in the survey made at the Head Office of the petitioner at Lucknow neither books of account nor stock of Menthal Oil were found. The show cause notice has been filed as Annexure-4 to the writ petition. This was a notice issued under section 17(11) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x, Lucknow has held that registration of the petitioner-Trader ought to be cancelled and has accordingly cancelled the same. Against this order of cancellation of registration the petitioner filed a writ petition no. 6211 of 2014 and the Division Bench of this Court disposed of the writ petition on the ground of alternative remedy and gave liberty to the petitioner to file an appeal before the competent authority within 15 days under the U.P. VAT Act by order dated 17.7.2014. It is stated that the appeal has been filed and the same has also been rejected by order dated 23.7.2014 (Annexure-8 to the writ petition). Aggrieved by this order the petitioner has preferred a second appeal before the Commercial Tax Tribunal Bench-III, Lucknow. Alongwith the appeal the petitioner has also filed an application under section 57(9) of the U.P. VAT Act praying for stay of the operation of the impugned order under section 17(11) of the U.P. VAT Act dated 8.7.2014. Copy of the application has been filed as Annexure-9 to the writ petition. In the application it has been specifically stated by the petitioner-Trader that he had only applied for change of Head Office from Masauli, B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdered would not even fall under its canopy as in all the above three events the revenue is not likely to be affected or is shown to be affected. Paragraphs 11 and 16 of the said judgement reads as under: "11. Non-transacting of of any business during a particular period causes no loss to the revenue and such would not constitute 'sufficient cause' for cancellation of registration. 12. ............ 13. ............ 14. ............ 15. ............. 16. The phrase 'for any other sufficient cause' used in sub clause (ix) of section 17(11) of the Act no doubt is wide enough but three reasons on which the cancellation of registration has been ordered would not even fall under its canopy as in all the above three events the revenue is not likely to be affected or is shown to be affected." The next referred case is reported in 2010 U.P.T.C. 1152 M/s Honda Siel Cars India Ltd. Vs. The Commissioner, Commercial Taxes, U.P. Lucknow wherein the High Court referring to a decision of the Supreme Court reported in 1983 (I) LCD 109 Mool Chand Yadav and another V. Raza Buland Sugar Co. Ltd. Rampur and others has held that where a statutory appeal has been entertained or adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovery merely on the asking of a party. It has to maintain a balance between the rights of an individual and the State so far as the recovery of sovereign dues is concerned. While considering the application for stay/waiver of a pre-deposit, as required under the law, the Court must apply its mind as to whether the appellant has a strong prima facie case on merit. In case it is covered by the judgment of a Court/Tribunal binding upon the Appellate Authority, it should apply its mind as to whether in view of the said judgment, the appellant is likely to succeed on merit. If an appellant having strong prima facie case, is asked to deposit the amount of assessment so made or penalty so levied, it would cause undue hardship to him, though there may be no financial restrain on the appellant running in a good financial condition. Paragraph 35 of the said judgment reads as under: "35. In view of the above, the aforesaid authorities make it clear that the Court should not grant interim relief/stay of the recovery merely by asking of a party. It has to maintain a balance between the rights of an individual and the State so far as the recovery of sovereign dues is concerned. While ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed to consider that the case of the petitioner throughout was that he had only applied for permission for transfer of his Head Office from Mausali, Barabanki to Kanchanpur Matiyari Chauraha, Faizabad Road, Lucknow whereas the business continued to function from Masauli, Barabanki. The Member, Tribunal while passing the impugned order has also failed to take into account whether the cancellation of the registration of the petitioner would result in loss of revenue to the State or otherwise that if registration was not cancelled it would result in financial loss to the State. Shri Bharat Ji Agarwal, learned senior counsel has however informed that the appeal preferred before the Tribunal, Bench III, Lucknow by the petitioner is still pending and no decision has been rendered so far. Considering the matter in the totality of the facts and circumstances of the case and in the light of the observations made herein above and the case law referred to, this writ petition is finally disposed of with a direction that the impugned order of cancellation of registration dated 8.7.2014 shall remain stayed during the pendency of the appeal of the petitioner before the Tribunal and shall be s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
