JUDGMENT R.B. Misra, J.
1. By this writ petition the order dated June 28, 2002 passed by the Trade Tax Tribunal has been challenged for suitable order or directions directing the Trade Tax Tribunal to continue the order dated September 27, 2001 and staying the recovery of amount which was only operative till March 25, 2002.
Heard Sri Bharatji Agrawal, Senior Advocate along with Sri Piyush Agrawal, learned counsel for the petitioner as well as Sri B.K. Pandey, learned Standing Counsel for the State and with the consent of the parties the writ petition is disposed of at this stage finally under second proviso to Rule 2 of chapter XXII of the Allahabad High Court Rules, 1952.
2. The brief facts necessary for adjudication of the case are that the petitioner is a public limited company carrying on the business of manufacture and sale of pipes. The petitioner is a registered company both under the U.P. Trade Tax Act, in short called "the Act" as well as the Central Sales Tax Act. The assessment orders for the year 1997-98 for U.P. as well for Central were passed by the Assistant Commissioner (Assessment), Trade Tax on March 30, 2000, against which the petitioner filed an appeal under Section 9 of the Act before the Deputy Commissioner (Appeals), Trade Tax, Ghaziabad, who by its order dated May 21, 2001 enhancing the tax liability, thereafter the petitioner filed a second appeal under Section 10 of the Act before the Trade Tax Tribunal, who by its order dated September 27, 2001 partly allowing the same has directed to stay of 80 per cent of the disputed amount of tax under the Act and 70 per cent of the disputed amount of tax for the Central (annexure 1 to the writ petition).
3. Aggrieved by the order dated September 27, 2001, the petitioner filed a Writ Petition No; 264 of 2002 whereby this Court on March 21, 2002 dismissed the writ petition with observations.
4. Accordingly the petitioner was required to deposit 30 per cent, i.e., Rs. 1,08,000 out of disputed amount of tax of Rs. 3,60,000 and since the petitioner has already deposited a sum of Rs. 78,000 and hence the balance amount of Rs. 30,000 was to be deposited. Out of the disputed amount of tax of Rs. 9,25,000, 80 per cent was stayed and 20 per cent, i.e., Rs. 1,85,000 was required to be deposited. The petitioner has already deposited Rs. 33,000 (annexure 6), a sum of Rs. 59,500 was also already deposited from treasury challan on July 31, 2001 (annexure 7). Eventhough the balance which was to be deposited in pursuance of the order dated September 27, 2001 of learned Tribunal was only Rs. 1,82,000 but instead the petitioner has deposited Rs. 2,49,000 by bank draft No. 584586 dated May 24, 2002 of State Bank of Patiala, since there was some delay in depositing the balance amount of Rs. 1,82,000. Since the stay order was operating till March 25, 2002 and the judgment was delivered by this Court on March 21, 2002 hence according to the petitioner he filed an application along with affidavit before respondent No. 1 for condonation of delay in furnishing the security bond to condone the delay in depositing the tax. The Tribunal by its order dated June 28, 2002 has dismissed the application only on the ground that since the security bond was not furnished within 30 days and there was no provision for extending the period for furnishing the security bond, therefore, condonation application was not accepted.
5. A division Bench of this Court in Associated Cement Co. Ltd. v. Deputy Commissioner of Sales Tax (Appeals), Kanpur 1981 STD 168 while interpreting the identical provision directed the assessing officer to accept the condonation of delay in furnishing the security beyond thirty days as required under the Act, accordingly the security bond already filed before him was treated to have been filed within time and the stay order was allowed to continue. Section 9(3-A) of the Act is identical to Section 10(8) which was considered by the division Bench of this Court which also provides that no stay order under Section 9(3-A) shall remain in force for more than 30 days unless the appellant has furnished the security to the satisfaction of the assessing authority for the payment of the amount stayed.
6. Section 9(3-A) was again considered by this Court in the case of Shree Vallabh Glass Works Ltd., Kanpur v. Assistant Commissioner (Assessment) reported in (1987) ATJ 783, para 8 in which this Court was pleased to hold that the delay in filing the security bond could also be condoned as well as the time for furnishing the security of 80 per cent of the disputed tax which was stayed could be extended.
7. Section 10(8) of the Act provides as follows :
"Where the Tribunal passes an order under this Section for the stay of recovery of any tax, fee or penalty or for the stay of the operation of any order appealed against and such order of the Tribunal results in the stay of recovery of any tax, fee or penalty, such stay order of the Tribunal shall not remain in force for more than thirty days unless the appellant furnishes adequate security to the satisfaction of the assessing authority concerned for the payment of the outstanding amount."
8. In the case of Gramodaya Ashram, Ghazipur v. State of U.P. reported in 1996 ,UPTC 897 it was held that the delay in depositing 5 per cent of the tax in cash, when 95 per cent of the disputed tax was stayed, should have been condoned and there was no justification for initiating the recovery proceedings, even if the security furnished was not sufficient or was defective.
9. In 2000 UPTC 396 (Sanjay Kumar Srivastaua v. Commissioner of Trade Tax) it was held that while considering the waiver cum stay application the revenue authorities or the Tribunal is required to look into the prima facie merits of the case as well as financial condition of the petitioner.
10. I have heard learned counsel for the parties and I find that Section 9(3-A) is identical to Section 10(8) of the Act and observations made in the above referred cases are applicable in the present case for extending time for depositing of security. From this point of view the order dated September 27, 2002 is hereby set aside and assessing authority is hereby directed to accept the security without treating the petitioner as defaulter and Second Appeals Nos. 625 of 2001, 626 of 2001 (1997-98 U.P. and Central) in respect of the petition is directed to be decided expeditiously preferably within six months from today with the co-operation of the parties.
The writ petition is allowed in view of the above observatibns.