2015 (3) TMI 390

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..... reasonable opportunity to prove its case. - It is the Tribunal's prima facie finding and which will definitely not bind it when it hears the appeal on merits. All that we hold is that if the prima facie finding is that there was a mismatch in the documents then prima facie they have been looked into and that prima facie conclusion reached is not to the satisfaction of the petitioner, will not enable it to claim total dispensation of the condition of pre deposit of the tax liability and to claim an unconditional stay of recovery pending appeal. The appeal is the second appeal now. The appeal against conditional order right upto the Tribunal and now a writ petition in this Court is only prolonging the compliance with the condition. We ha .....

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..... to the petitioner has been held. The petitioner is a genuine businessman and has not indulged in any hawala transactions. The fact that he has been called upon to produce documents denotes as to how the department has prejudged the matter and is now completing a formality. There being such strong prima facie case the Tribunal should not have maintained the order of the First Appellate Authority directing the petitioner to make payment of ₹ 1,24,071/- for the assessment period 2009-2010. 2. We are not impressed by any of these submissions of Mr. Upadhyay. The matter has been brought before us at an interim stage. An assessment order was passed by the Assessing Authority in which a set off of ₹ 1,24,071/- for the period 1st Ap .....

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..... not such, then, it cannot be claimed to be a hawala transaction. 6. We do not wish to express any opinion on such contention and at the interim stage. That would prejudice either sides. If the proof has been produced and not looked into or the documents are rejected without any application of mind, then the Tribunal will definitely look into this grievance of the petitioner. We have no doubt in our mind that merely because the basic tax is secured by deposit, the petitioner will not get adequate and reasonable opportunity to prove its case. 7. It is the Tribunal's prima facie finding and which will definitely not bind it when it hears the appeal on merits. All that we hold is that if the prima facie finding is that there was a mi .....

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