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TMI Blog2016 (7) TMI 1300X X X X Extracts X X X X X X X X Extracts X X X X ..... late authority and the learned Tribunal have failed to apply their mind to the relevant parameters while considering the application for interim relief and have declined a complete stay on the disputed tax-liability mechanically. Learned counsel for the revisionist relied upon the following judicial pronouncements in support of his contention:- (1) Pennal Industries Ltd. vs. State of Andhra Pradesh and others; (2009) 3 SCC 177 (2) Ravi Gupta vs. commissioner of Sales Tax, Delhi and another; (2009) 5 SCC 208 (3) Mool Chand Yadav and another vs Raz Buyland Sugar Company Ltd., Rampur and others; (1982) 3 SCC 484 (4) Benara Valves Ltd. And others vs. Commissioner of Central Excise and another; (2006) 13 SCC 347 (5) Kishorsinh Ratansinh Jadeja vs. Maruti Corporation and others; (2009) 11 SCC 229 (6) Mahadeo Savlaram Shelke and others vs Pune Municipal Corporation and another; (1995) 3 SCC 33 (7) Kribhco Shyam Fertilizers Ltd. Vs. Commissioner of Commercial Taxes; (2009) UPTC 626 (8) M/s Honda Siel, Cards India Ltd. vs. the Commissioner, Commercial Taxes, U.P., Lucknow; (2010) UPTC 1152 (9) Agraj Ispat Private Ltd. Abupura vs Commissioner, Commercial Taxes, U.P. Lucknow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) where an order under appeal involves dispute about tax, fee or penalty, no stay order shall remain in force after thirty days from the date on which the same has been granted, if the appellant does not furnish security to the satisfaction of the assessing authority for payment of the amount, the realization whereof has been stayed within the aforesaid period of thirty days; (ii) no such application shall be entertained unless it is filed along with the memorandum of appeal under sub-section (1). Against the order of the First Appellate Authority there is a provision for filing an appeal before the learned Tribunal under Section 57(4) of the VAT Tax Act, 2008. Under sub section 9 thereof the Tribunal is empowered to stay the operation of the order appealed against or the recovery of the disputed amount of any tax, fee or penalty payable, or refund of the amount due, or proceeding for re-assessment under the order appealed against till the disposal of the appeal on the application of the appellant moved along with memorandum of such appeal after giving the parties a reasonable opportunity of being heard subject to the conditions mentioned in the provisos to the said Section. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7;ादित धनराशि रु० ३२,९६,६२,९५०.०० है1 स्थगन प्रार्थना पत्र पर सुनवाई हेतु अपीलकर्ता की ओर से श्री जी0 एल० जोशी, अधिवक्ता/ राकेश गुप्ता अधिकृत प्रतिनिधि उपस्थित हुए बताया कि १७४९ चेसिस को लखनऊ प्लांट से बॉडी बिë ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2326;नऊ उपस्थित हुए और स्थगन का प्रबल विरोध किया.1 अतः समस्त तथ्यों पर विचारोपरांत विवादित देयकर रु0 ३२,९६,६२,९५०.०० (बतीश करोड़ छिन्नवेय लाख बहसठ हज़ार नौ सौ पचास मात्र) का ७०% (सत्तर प्रतिशत) अपील के निस्तारण तक स्थग ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25;े लिए एडिशनल कमिश्नर ग्रेड-२, (अपील) -४, वाडिज्य कर, लखनऊ द्वारा पारित प्रश्नगत वसूली स्थगन आदेश दिनांक ११.०५.२०१६ के विरुद्ध योजित क़ी गई है जिसमें उनके द्वारा विवादित धनराशि रु0 ३२,९६,६२,९५०/- के ७० प्रतिशत अंश क़ी ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ो अपील निस्तारण तक स्थगित रखने के लिए अनुरोध किया गया1 राज्य का पक्ष प्रस्तुत करने के हेतु असिस्टेंट कमिश्नर एवं राज्य प्रतिनिधि उपस्थित हुए. अपीलकर्ता द्वारा प्रस्तुत अपील का उनके द्वारा प्रतिवाद किया ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 339; प्रथम अपीलीय अधिकारी द्वारा किया जाना है, अतः वाद के गुण दोष के सम्बन्ध में अधिकरण स्तर से कोई टिपणी किया जाना वांछित/उचित नहीं है1 अपीलकर्ता विवादित कर को अदा कर सकने में असमर्थ है. अतः समस्त परिस्थितियों ç ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1;वीकार किये जाने योग्य है1 आदेश अपीलकर्ता व्यापारी द्वारा प्रस्तुत प्रश्नगत द्वितीय अपील स. १६०/१६, वर्ष १२-१३ आंशिक रूप में स्वीकार की जाती है तथा विवादित राशि के रु0 ३२,९६,६२,९५०/- के ९० (नब्बे) प्रतिशत अंश की व ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Authority. Such cryptic recitals both by the First Appellate Authority and the learned Tribunal do not satisfy the requirement of law. The passing of such orders in such a manner are hereby deprecated. For the convenience of the learned Tribunal and the First Appellate Authority the legal position in this regard is being reiterated in the solemn hope that in future they shall adhere to the same strictly. The principles which are to be kept in mind while considering the application for interim relief/temporary injunction have been settled by the Supreme Court in various decisions. Reference may be made in this regard to the judgment of the Supreme Court in the case of Shiv Kumar Chadha v. Municipal Corporation of Delhi reported in (1993) 3 SCC 161. This was a judgment rendered by a Bench of three Hon'ble Judges, wherein, in paragraph 30 their Lordships observed as under:- ".....[A] party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf is not sufficient to grant injunction. The concept of "irreparable injury" was considered in Dalpat Kumar (supra) the Supreme Court opined that it does not mean that there must be no physical possibility of repairing the injury but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. While considering the concept of "balance of convenience" which is required to be in favour of granting injunction, the court opined that while granting or refusing to grant injunction, the court should exercise sound judicial discretion and find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing compelling possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status-quo, an injunction would be issued. Thus, it opined that a court has to exercise its sound judicial discretion in granting or refusing the relief of ad-interim injunction pending the suit. The afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of interim relief may lead to public mischief, grave irreparable private injury or shake a citizen's faith in the impartiality of public administration, a court may well be justified in granting interim relief against public authority. But since the law presumes that public authorities function properly and bonafide with due regard to the public interest, a court must be circumspect in granting interim orders of far reaching dimensions or orders causing administrative, burdensome inconvenience or orders preventing collection of public revenue for no better reason than that the parties have come to the court alleging prejudice, inconvenience or harm and that a prima facie case has been shown. There can be and there are no hard and fast rules. But prudence, discretion and circumspection are called for. There are several other vital considerations apart from the existence of a prima facie case. There is the question of balance of convenience. There is the question of irreparable injury. There is the question of the public interest. There are many such factors worthy of consideration. It wondered why in the case indirect taxation where the burden has already been passed on to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Supreme Court clarified the matter regarding prima-facie case, thus in a given case if the issue involved has already been adjudicated then it would be a very strong prima facie case in favour of the assessee and subjecting the assessee to tax-liability even in such cases would fall within the ambit of the observations made by the Supreme Court in Benara Valves Ltd (supra) as aforesaid. It is not out of place to refer a Division Bench of this Court in the case of I.T.C. Ltd. vs. Commissioner (Appeals) Custom & Central Excise reported in 2005 (184) E.L.T. 347 wherein a similar view has been taken. In Benara Valves Ltd. (supra) the Supreme Court observed that "petitions for stay should not be disposed of in a routine manner unmindful of the consequences flowing from the order requiring the assessee to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved." It also observed in paragraph 9 of the judgment that "it has become an unfortunate trend to casually dispose of stay applications by referring to decisions in Siliguri Municipality and Dunlop India cases w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the same this Court does not find the contention based thereon that in every case where an appeal is filed under Section 55 and is admitted a complete stay of tax-liability should necessarily be ordered automatically, as acceptable. The said judgment does not lay down any such principle of law of universal application even to an appeal under a taxing statute. The decision in such case is also to be taken with judicious. In view the above the impugned judgments and orders passed by the learned Tribunal are hereby set aside. Normally this Court would have remanded the matter to the learned Tribunal to decide the same afresh but considering the fact that the orders of First Appellate Authority which were challenged in the Appeal before the learned Tribunal and stands merged in the orders passed by it which are impugned herein, which have now been set aside, also suffer from the same defect, it would be a futile exercise, accordingly, this Court remands the matters to the First Appellate Authority for considering the applications for interim relief afresh keeping in mind the observations made hereinabove and a decision thereon within a period of thirty days from the date of receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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