Heard Sri Pradeep Agarwal, learned counsel for the revisionist and Sri Sanjay Sarin, learned counsel, who has put in appearance on behalf of the respondent.
The validity of the assessment order for the year 2017-18 passed by the assessing authority on 25.3.2021 has been challenged before the first appellate authority wherein an application for interim stay of the disputed tax was filed by the assessee alongwith the appeal. The application seeking exemption to deposit the disputed tax was disposed of by order dated 7.6.2021 allowing exemption to the extent of 50%. The order passed by the first appellate authority was further questioned before the Tribunal by means of an appeal filed under Section 57 of the U.P. Value Added Tax Act, 2008. An application for interim stay of the order passed by the first appellate authority was filed praying for 100% exemption, partial relief whereof was granted by the first appellate authority.
The appeal preferred before the appellate Tribunal was decided by means of the impugned order dated 13.5.2021 according to which exemption to the extent of 90% of the disputed tax has been granted. The revisionist feeling aggrieved has thus come up seeking a 100% relief in this revision.
Learned counsel for the revisionist has submitted that a strong prima facie case in favour of the revisionist is itself evident from the fact that the first appellate authority as well as the Appellate Tribunal being convinced with the submission put forth have already stayed the deposit of the disputed tax to the extent of 90%.
It is further submitted that the revisionist is a government undertaking and cannot be saddled with such liability of tax within the scope of law.
It is also submitted that right to appeal is a statutory right and the same cannot be curtailed merely on the conditions of deposit which may otherwise be harsh as is the case at hand. According to him, the imposition of tax liability on the food grains/pulses is impermissible in the eye of law with the enforcement of Goods and Sales Tax Act w.e.f. 1.7.2017 by reversing the tax liability on the closing stock.
Learned counsel for the revisionist has relied upon a judgement reported in 2005 (184) ELT 347 (All.) [I.T.C. Ltd. v. Commissioner (Appeals), Custom and Central Excise, Meerut-I] to contend that in a situation of strong, prima facie case, the appellate remedy deserves to be secured by granting 100% exemption. Similar orders passed by this Court are also filed as Annexures No. 7 to 10 to the present revision.
Sri Sanjay Sarin, learned counsel for the respondent conceding to the position of law has submitted that once the appellate authorities below have granted stay on the deposit of disputed tax to the extent of 90%, it cannot be disputed much that a prima facie case is not made out.
In the facts and circumstances of the case, once a prima facie case is made out, the appellate authority must enter into the merits of the case without calling upon the assessee to discharge the entire liability of disputed tax.
Accordingly, the revision is allowed with a direction to the first appellate authority to decide the pending appeal expeditiously and preferably within a period of two months from the date of production of a certified copy of this order.
The demand of the disputed tax in its entirety shall remain stayed till the decision of the first appeal pending before the first appellate authority and subject to the outcome.
Order Date :- 27.7.2021 Fahim/-