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TMI Blog2020 (12) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... d that earlier this Court by means of orders dated 12.1.2017 and 15.3.2018 had granted interim protection to the applicants in respect of deposit to be made as a condition for stay. It is argued that in pursuance of the orders passed earlier, the Appellate Authority heard the matter and remanded the same for fresh adjudication before the Assessing Authority by means of an order dated 28.9.2018. It is further argued that in pursuance of the remand the Assessing Authority once again passed an order rejecting the Books of Accounts and taking recourse to the provisions of Section 28 (2)(ii) of U.P. Value Added Tax, 2008 (hereinafter referred to as the 'VAT Act') made the additions completely overlooking the directions given in the remand order. It is argued that after fresh order of assessment the appellant preferred an appeal before the Appellate Authority and also moved an application for grant of stay and in respect of three orders for the year 2013-14, the Appellate Court, while deciding the stay application, granted stay of 50% of the amount assessed against the applicant. The applicant, aggrieved against the said order, whereby stay after the extent of 50% was granted, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en taken without any change in circumstances during the remand assessment proceedings and without recording any cogent reasons thereto?" A very short question arises for consideration, I propose to decide the revision itself on merits. Considering the facts, as arise, it is clear that an assessment order was passed after rejecting the Books of Accounts of the revisionists by taking recourse the Section 28(2)(ii) of the VAT Act. The said order was challenged in appeal in which initially the Appellate Authority granted a limited stay, however, subsequently, when the matter travelled up to the High Court, this Court passed an order dated 12.1.2017 to the following effect: "Revisionist is aggrieved by an order passed by the Tribunal dated 22nd December, 2016, in so far as it requires the revisionist to deposit 30% of the disputed amount of tax, during the pendency of its appeal before the first appellate authority. Learned counsel for the revisionist contends that during the course of assessment proceedings, the revisionist had prayed for certain additional time to submit required documents and certificates, in order to demonstrate that revisionist is entitled to exemption, but s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so far as it requires the revisionist to deposit 30% of the tax amount quantified at Rs. 8,05,098/- within 30 days before the assessing authority. Learned counsel for the revisionist submits that the tax has been imposed upon the revisionist in respect of stock transfer only, because Form 'F' has not been produced before the assessing authority. Revisionist submits that it had sought time before the assessing authority for producing necessary documents, but such request has been rejected, and the order of assessment has been passed. Revisionist submits that it shall submit the requisite forms, during the course of hearing of the appeal, and therefore, at this stage, it be not directed to deposit any further amount of tax, for the purpose of grant of interim protection. Learned counsel states that it has already deposited 10% amount payable towards tax, and admitted tax has also been paid. Learned Standing Counsel submits that in the facts and circumstances, the appeal itself can be considered and disposed of, in accordance with law. In view of the fact that revisionist has already deposited 10% of the disputed tax amount, and the issue is only as to whether Form & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late Authority has specifically recorded that it cannot record any finding in respect of prima facie case at the stage of considering the stay application as it may affect the final adjudication. It is well settled that while deciding the application for grant of stay the Appellate Authority or the Tribunal is bound to consider 'prima facie case' as pleaded by any assessee and the 'financial hardship', if pleaded by the assessee, while deciding stay application, it cannot refuse to exercise the discretion by refusing to consider prim facie case solely on the ground that any finding recorded at this stage may ultimately affect the outcome of the appeal. Needless to add that prima facie satisfaction which is liable to be recorded cannot have any effect on the final decision which is to be taken by the Appellate Authority as the 'prima facie' consideration, as the names suggest is only 'prima facie' and, ultimately, the appeal has to be decided on its own merits after hearing the parties. The Tribunal cannot escape or refuse to consider the prima facie case at the time of considering the stay application as it is well settled that the parameters for de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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