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TMI Blog2014 (8) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 subject to the outcome of the final decision of the Tribunal - Stay granted. - Misc. Single No. - 4271 of 2014 - - - Dated:- 1-8-2014 - Hon'ble B. Amit Sthalekar,JJ. For the Petitioner : Rahul Srivastava For the Respondent : C. S. C. ORDER The petitioner in this writ petition is carrying on the business of purchase and sale of Mentha Oil and the business is being carried out at Masauli District Barabanki from where purchase and sale are being done. In the writ petition it has been stated that the proprietor of the Firm met with a major Heart Attack as a result of which he requested the Addl. Commissioner (Law) Commercial Tax Lucknow to be permitted to change his Head Office from Masauli, Barabanki to Kanchanpur Matiyari Chauraha, Faizabad Road, Lucknow. This application has been filed as Annexure-2 page 34 of the writ petition. This application was considered by the Addl. Commissioner (Law) Commercial Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame; or (v) the dealer has issued any tax invoice to a dealer without making actual sale of goods; or (vi) where a transporter or carrier or transporting agent or railway container contractor fails to file return or otherwise acts in contravention of the provisions of this Act or rules made thereunder; (vii) a person acts in contravention of provisions of Section 43; (viii) where a dealer has failed to pay the tax, penalty or other dues within three months of the date such tax, penalty or other dues become payable; (ix) registration certificate has been cancelled for any other sufficient cause. On 8.7.2014 an order was passed by the Dy. Commissioner, Commercial Tax, Lucknow wherein he notices that on 27.6.2014 when a survey was conducted at the site of business no stock was found nor any business activity was noticed at Lucknow nor any books of account were found. He has however, noticed that on 27.6.2014 in a similar survey conducted at Mausali, Barabanki all the books of account and other documents were found and stock was also found and that from this it is established that the Trader has not maintained any books of account and other documents at Kanchanpur Mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the parties, this writ petition is being disposed of at the admission stage itself. From a perusal of the impugned order dated 28.7.2014 it will be noticed that several case law have been cited before the authority and the same have neither been referred to nor even considered and infact the plea of the petitioner for stay has been rejected on the ground that the judgements referred to by the petitioner were in matters which were finally decided in Trade Tax Revisions and not in any matter where the appeal was still pending. Shri Bharat Ji Agarwal has referred to some of the decisions. The first judgment referred to is reported in (2011) 16 VLJ 201 Sai Traders Vs. Commissioner, Commercial Tax U.P. Lucknow wherein while considering the provisions of Section 17(11) of the U.P. VAT Act, the Court held in paragraph 11 that non-transacting of any business during a particular period causes no loss to the revenue and as such would not constitute 'sufficient cause' for cancellation of registration. It may be mentioned that in that case the Court was also considering the phrase 'for any other sufficient cause'. In paragraph 16 the Court further held that the phrase & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05 (1840 E.L.T. 347 (All.) I.T.C. Ltd. V. Commissioner (Appeals), Cus. and C. Ex., Meerut-I. The said case is also one where the application for stay/waiver of pre deposit of the amount demanded by the assessing authority had been rejected during the pendency of the appeal and His Lordship Dr. B.S. Chauhan (as His Lordship then was) writing the judgment in the Division Bench referred to the judgment of the Supreme Court in Income Tax Officer V. M.K. Mohammad Kunhi, AIR 1969 SC 430 and held that the stay should be granted if a strong prima facie case has been made out or in the most deserving and appropriate case where entire purpose of the appeal will be frustrated or rendered nugatory by allowing the recovery proceedings to continue, during the pendency of the appeal. Paragraph 18 of the said judgment reads as under: 18. In Income Tax Officer V. M.K. Mohammad Kunhi, AIR 1969 SC 430 the Apex Court held that the stay should be granted if a strong prima facie case has been made out or in the most deserving and appropriate case where entire purpose of the appeal will be frustrated or rendered nugatory by allowing the recovery proceedings to continue, during the pendency of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ip' has a wider consideration 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. While considering the application for interim relief, the Court must examine all pros and cons involved in the case and further examine that in case recovery is not stayed, the right of appeal conferred by the legislature and refusal to exercise the discretionary power by the authority to stay/waive the pre-deposit condition, would be reduced to nugatory/illusory. Undoubtedly, the interest of the Revenue cannot be jeopardized but that does not mean that in order to protect the interest of the Revenue, the Court or authority should exercise its duty under the law to take into consideration the rights and interest of an individual. It is also clear that before any goods could be subjected to duty, it has to be established that it has been manufactured and it is marketable and to prove that it is marketable, the burden is on the Revenue and not on the manufacturer. In the present case also the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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