Court No. - 7
Case :- SALES/TRADE TAX REVISION No. - 11 of 2019 Applicant :- M/S Kamdhenu Sweets And Namkeen Opposite Party :- The Commissioner, Commercial Tax Up And Another Counsel for Applicant :- Vishnu Kesarwani,Kedar Nath Kumar Counsel for Opposite Party :- C.S.C.
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Vishnu Kesarwani, learned counsel for the applicant-assessee and Sri B.K. Pandey, learned Standing Counsel.
2. The present revision has been filed with the following question of law:
"Whether under the facts and circumstances of the case the learned Commercial Tax Tribunal was legally justified in allowing stay on 70% of total amount disputed tax?"
3. Learned counsel for the applicant submits that once the Tribunal had itself observed that there was no basis disclosed in the assessment order for imposition of tax, there did not survive any justification on the part of the Tribunal to have refused to grant of stay to the extent of 30%.
4. Learned Standing Counsel, on the other hand, submits that the assessment order is well reasoned and, therefore, the Tribunal has not erred in refusing to grant of stay, only to the extent of 30%.
5. No useful purpose would be served in keeping the present revision pending, since it only pertains to matter of interim stay.
6. Having heard learned counsel for the parties and having perused the order of the Tribunal, the contention raised by the learned counsel for the applicant appears to be well-founded. Before granting stay, the Tribunal was obliged to record it's opinion as to prima facie merits and financial hardship, etc. Once the Tribunal had unequivocally expressed it's prima facie opinion that there is no basis for assessment of tax, there survived less scope to deny full stay of the disputed tax, during pendency of the first appeal.
7. In view of the above, the question of law framed above is answered in negative, i.e. in favour of the assessee and against the revenue.
8. It is provided that the applicant is entitled to full stay during pendency of the first appeal, in view of the finding of fact recorded by the Tribunal. It is expected that the first appellate authority would proceed to hear and decide the appeal pending before him against the order dated 25.9.2018 for A.Y. 2015-16 (U.P.), as expeditiously as possible, preferably within a period of three months from the date of production of certified copy of this order.
9. The present revision stands allowed.
Order Date :- 21.1.2019 Prakhar