Trade Tax Revision No. 65 of 2016 has been filed under Section 58 of the VAT Act, 2008 against the judgment and order dated 11.05.2016 passed by the learned Commercial Tax Tribunal, Lucknow in Appeal No. 160 of 2016.
The question of law involved in this revision is as under:-
Whether the impugned judgment of the tribunal can be sustained in the light of the parameteters laid down by the Supreme Court in a catena of decisions viz. (2009) 3 SCC 177; Pennar Industries Ltd. vs. State of Andhra Pradesh and others; (2006) 13 SCC 347; Benara Valves Ltd. And others vs. commissioner of Central Excise and Another; (1985) 1 SCC 260; Assistant Collelctor v. Dunlop India Ltd. & ors., etc. for considering interim relief matters ?
The contention of the revisionist in nut shell is that both the first appellate 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.
(10) Suresh Chandra Agarwal and sons, Muzaffarnagar vs The Commissioner Commercial Taxes, U.P. Lucknow; (2010) UPTC 1158 (11) M/s Simla Gomti Pan Products vs Commissioner of commercial Tax, U.P., Lucknow; 2015 SCC Online Alld. 5081 (12) M/s Otis Elevators Company (India) Ltd. Vs The Commissioner of Commercial Taxes, U.P. Lucknow; 2014 SCC Online Alld. 13691 (13) M/s Tata coffee Ltd. Vs Commissioner of Trade Tax and another; 2002 UPTC 156 (14) Writ Petition No. 2648 of 2012 (MS) M/s A.P. Enterprises vs Commissioner of Commercial Tax, U.P. and others.
Sri Sanjeev Shankhyadhar learned counsel appearing on behalf of the Tax-department relied upon the decision of the Supreme Court in the case of Assistant Collelctor v. Dunlop India Ltd. & ors reported in (1985) 1 SCC 260 and asserted that the said pronouncement has not been adhered to.
The parameters which are required to be considered while deciding an application for interim relief, have been settled by the Supreme Court in a catena of decisions, yet this Court finds from the revisions which are filed before it including this revision that not only the first appellate authority but the learned Tribunal pass un-reasoned orders which do not disclose due and proper application of mind to the relevant parameters, ignoring the pronouncement of the Supreme Court and also those of this Court on the subject. It is indeed a deplorable state of affairs and it is high time that the learned Tribunal and the Appellate Authorities under various taxing statutes woke up to the constitutional and statutory obligations imposed upon them to follow the principles of law enunciated by the Supreme Court and by this Court while considering an application for stay of disputed tax liability.
Under VAT Tax Act, 2008 an appeal is provided against an order passed by the Assessing Authority which is referred to as the First Appellate Authority. Under sub section 3 of Section 55 of the VAT Act, 2008 there is a requirement of pre-deposit of the amount admitted by the appellant in the tax returns filed by him or at any stage in any proceedings under this Act. In addition to aforesaid in sub section 6 of Section 55 of the VAT Act, 2008 the Appellate Authority has been vested with the power of staying the realization of disputed amount of tax, fee or penalty payable by the appellant till the disposal of the appeal, provided that-(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. There is also a requirement under proviso (a) of sub section 9 of Section 57 of pre-deposit of not less than one third of such disputed amount in addition to the amount required to be deposited under sub-section 3 of Section 55. Sub-section 10 thereof further stipulates that no such stay order which relates to stay of recovery of any tax, fee or penalty by the learned Tribunal shall 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.
Against the assessment order for the year 2012-13 a First Appeal was filed by the revisionist under Section 55 of the VAT Act, 2008. The First Appellate Authority vide its order dated 11.05.2015 stayed the realization of 70% of the disputed amount being Rs.32,96,62,950/- with the condition that the businessman shall furnish security in respect of the stayed amount within thirty days to the satisfaction of the assessing authority. The said order reads as under:-
" यह स्थगन प्रार्थना पत्र श्री महेंद्र विक्रम सिंह ज्वा0 कमि0 (कारपो0 सेल) द्वितीय, वाडिज्य कर, लखनऊ द्वारा उ० प्र0 वैट अधिनियम की ९(२) के अंतर्गत दि० २८.०३.२०१६ को पारित कर निर्धारण के विरुद्ध दाखिल अपील के साथ प्रस्तुत किया गया है जिसमे विवादित 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 बिल्डर के यहाँ जाब्वॉर्क के लिए स्टॉक ट्रांसफर घोषित किया एवं १२ फार्म ऍफ़ भी दाखिल किये गए है1 यह बिंदु वर्ष २००९-१०, २०१०-११ में विवादित था. तथा इस बिंदु पर वाद को प्रथम अपीलीय आदेश द्वारा प्रतिप्रेषित किया गया है. धनराशि रु० १०.३५ करोड़ फार्म-ऍफ़ एवं फार्म-सी जमा करने के लिए समय कि मांग कि गई थी1 समस्त विवादित देय कर को अपील निस्तारण तक स्थगित रखने के लिए अनुरोध किया गया1 विभाग की ओर से डिप्टी कमिश्नर, खण्ड - १४ वाडिज्य कर, लखनऊ 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 स्थगित रखने के आदेश दिए जाते हैं. व्यापारी आदेश के ३० दिन के अंदर स्थगित धनराशि की जमानत कर निर्धारण अधिकारी के सन्तोषानुसर दाखिल करेंगे अन्यथा यह आदेश स्वतः निरस्त हो जायेगा. "
On a bare perusal of the interim order passed as aforesaid complete disregard and non application of mind to the parameters laid down by the Supreme Court and this Court in various decisions is writ large. Merely saying that "considering the facts in totality 70% of the disputed tax liability shall remain stayed" does not by any cannon of judicial discipline satisfy the requirement of adherence to the principles laid down by the Supreme Court and this Court on the subject.
When this order was challenged before the learned Tribunal it enhanced the interim protection to 90% of the disputed tax liability, however, again without any application of mind to the relevant factors, thereby, committing the same mistake which was committed by the First Appellate Authority. For convenience the order of the learned Tribunal passed on the same day i.e. 11.05.2016 is reproduced as under:-
"निर्णय प्रश्नगत द्वितीय अपील अपीलकर्ता व्यापारी द्वारा प्रथम अपील स०-२७८ वर्ष १२-१३ के 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 वसूली प्रथम अपील के निर्णय तक स्थगित क़ी गई है 1 अपील क़ी सुनवाई के समय अपीलकर्ता क़ी ओर से उनके विद्वान अधिवक्ता उपस्थित होकर बताया कि १७४९ चेसिस को लखनऊ प्लांट से चेसिस पर बॉडी फेब्रिकेशन करने के लिए बॉडी बिल्डर के पास स्टॉक ट्रांसफर किया गया एवं जिसके सम्बन्ध में १२ फार्म - ऍफ़ भी दाखिल किये गए है1 धनराशि रु0 १०.३५ करोड़ के फार्म एवं फार्म सी जमा करने के लिए कर निर्धारण अधिकारी से समय कि भी मांग की गई1 समस्त विवादित कर को 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 गया1 यह कहा गया है कि प्रथम अपीलीय अधिकारी द्वारा किये गए स्थगन में हस्तछेप वांछित नहीं है1 मेरे द्वारा उभय पक्षों को सुना गया एवं पारित कर निर्धारण आदेश, प्रथम अपीलीय अधिकारी द्वारा पारित स्थगन आदेश, द्वितीय अपील आधार, दाखिल स्थगन प्रार्थना पत्र एवं शपथ पत्र और अपील कि सुनवाई के समय विद्वान अधिवक्ता तथा राज्य प्रतिनिधि द्वारा प्रस्तुत तर्कों का परिशीलन किया गया1 प्रथम अपील स्तर पर विवादित बिंदु का निस्तारण 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 एवं तथ्यों पर सम्यक रूप से विचार करने के उपरांत मैं यह उचित समझता हूँ कि प्रथम अपील के लंबन काल तक सम्पूर्ण विवादित धनराशि रु0 ३२,९६,६२,९५०/- (रु. बत्तीस करोड़ छिन्नवेय लाख बहसठ हज़ार नौ सौ पचास मात्र) के ९०(नब्बे) प्रतिशत अंश की वसूली का स्थगन अपीलकर्ता द्वारा कर निर्धारण अधिकारी के समक्ष समुचित प्रतिभूति प्रस्तुत करने पर, प्रथम अपील के निस्तारण तक किया जाना न्याय सांगत है1 फलतः प्रश्नगत द्वितीय अपील आंशिक रूप में स्वीकार 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 वसूली प्रथम अपील के निस्तारण तक इस प्रतिबन्ध के साथ स्थगित की जाती है1 कि स्थगित धनराशि कि जमानत अपीलकर्ता सम्बंधित कर निर्धारण अधिकारी के सन्तोषानुसर उनके समक्ष नियमानुसार दाखिल करें अन्यथा स्थगन आदेश स्वतः निष्प्रभावी हो जायेगा1 "
A bare perusal of the order passed by the learned Tribunal shows that it has merely made a cryptic observation that it has heard the parties and perused the impugned interim order passed by the First Appellate Authority, grounds of the second appeal, the application for interim relief and the affidavit in support thereof, thereafter it has stated that the merits of the First Appeal are to be decided by the First Appellate Authority, therefore, it would not be appropriate for it to comment on the merits of the case and after mechanical reference to two decisions one of the high Court and other of Supreme Court in Pennar Industries Ltd (supra) and mechanically stating that after considering the totality of the facts and circumstances it finds it appropriate and justified to stay the realization of the disputed tax-liability to the extent of 90%, and merely on the basis of this cryptic recital it has passed the order accepting the appeal partly, thereby impliedly setting aside the impugned order passed by the First Appellate 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 restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The court grants such relief according to the legal principles--ex debito justitiae. Before any such order is passed the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him."
In the case of Dalpat Kumar v. Prahlad Singh reported in (1992) 1 SCC 719, a Bench of two Hon'ble Judges observed in paragraph 6 as under:-
"...... "prima facie case", "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by men's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice.
"......the court would be circumspect before granting the injunction and look to the conduct of the party, the probable injury to either party and whether the plaintiff could be adequately compensated if junction is refused."
The aforesaid decisions were considered and followed by the Supreme Court in a subsequent decision in the case of Mahadeo Savlaram Shelke and others vs. Pune Municipal Corporation and another, reported in (1995) 3 SCC 33, wherein it observed that in Dalpat Kumar (supra) the Supreme Court held that the phrases "prima facie case", "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation but words of width and elasticity intended to meet myriad situation presented by men's ingenuity in given facts and circumstances and should always be hedged with sound exercise of judicial discretion to meet the ends of justice. The Court would be circumspect before granting the injunction and look to the conduct of the party the probable injury to either party and whether the plaintiff could be adequately compensated if injunction is refused. The Court also opined that "prima facie case" is a substantial question raised bona fide, which needs investigation and a decision on merits i.e. a triable issue. Satisfaction that there is a 'prima facie' case by itself 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 aforesaid observations were made in the context of refusal or grant of temporary injunction in a suit under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 but the principles enunciated therein have been applied to matters relating to grant or refuse to grant interim relief in proceedings other than suits also and there is no dispute in this regard. These observations of the Supreme Court should have been kept in mind by the Tribunal and the First Appellate Authority while passing the impugned order.
A Bench of three Hon'ble Judges of the Supreme Court in the case of Assistant Collector of Central Excise vs. Dunlop India Ltd. And others reported in (1905) 1 SCC 260, also reiterated the aforesaid principles with reference to the earlier decisions rendered in Sri Samarias Trading Company Pvt. Ltd. v. S. Samuel and others reported in (1985) 2 SCR 24, Titagarh Paper Mills Co. Ltd. v. State of Orissa reported in (19983) 2 SCC 433, Union of India v. Oswal Woolen Mills Ltd. reported in (1984) 2 SCC 646 and Siliguri Municipality vs. Amlendu Das reported in (1981) 2 SCC 436.
In the case of Siliguri Municipality (supra) the Calcutta High court had passed orders restraining the Siliguri Municipality from recovering a graduated consolidated rate on the annual value of buildings in terms of the amended provisions of the Bengal Municipal Act, which compelled the Supreme Court to observe that it was dismayed at the tendency of the some of the High Courts to grant interlocutory order on mere asking. Normally the High Court should no, as a rule, in proceedings under Article 226 grant any stay of recovery of tax save under very exceptional circumstances.
In the case of Dunlop India Ltd.,(supra) the court deprecated the practice of granting interim order which particularly gives the principal relief sought in the petition for no better reason than that a prima facie case has been made out without being concerned about 'balance of convenience', the 'public interest' and a host of other relevant considerations. The court further observed that there are of-course cases which demand that interim orders should be made in the interests of justice. Where gross violations of the law and injustices are perpetrated or are about to be perpetrated, it is the bounden duty of the court to intervene and give appropriate interim relief. In cases where denial 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 consumer, any interim relief should at all be given to the manufacturer, dealer and the like! It also referred to its own observation in Siliguri case(supra) that "the Court has therefore to strike a delicate balance after considering the pros and cons of the matter lest larger public interest is not jeopardized and institutional embarrassment is eschewed". The court further went on to observe as under:-
"Even assuming that the company had established a prima facie case, about which we do not express any opinion, we do not think that it was sufficient justification for granting the interim orders as was done by High Court. There was no question of any balance of convenience being in favour of the respondent-company. The balance of convenience was certainly in favour of the Government of India. Governments are not run on mere Bank Guarantees. We notice that very often some courts act as if furnishing a Bank Guarantee would meet the ends of justice. No governmental business or for that matter no business of any kind can be run on mere Bank Guarantees. Liquid cash is necessary for the running of a Government as indeed any other enterprise. We consider that where matters of public revenue are concerned, it is of utmost importance to realise that interim orders ought not to be granted merely because prima facie case has been shown. More is required. The balance of convenience must be clearly in favour of the making of an interim order and there should not be the slightest indication of a likelihood of prejudice to the public interest".
In Benara Valves Ltd (supra) which was a case arising out of Central Excise Act, 1944 specially relating to Section 35-F thereof again the question was with respect to parameters to be kept in mind while granting or refusing to grant stay of realization of disputed tax-liability. The Supreme Court observed that in such matters though discretion is available, the same has to be exercised judicially. After referring to earlier decision in the case of Siliguri (supra), Samarias Trading Co.(P) Ltd. (Supra) and Dunlop India Ltd. it observed that it is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no legs to stand on, it would be undesirable to require the assessee to pay full or substantive part of the demand. Thus, 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 without analysing factual scenario involved in a particular case.
In nut shell the Sumnum Bonum of the decision is due and proper application of mind to the factual scenario involved in the case keeping in mind the principle of prima facie case, balance of convenience, irreparable injury and other relevant factors discussed hereinabove. The order should disclose such application of mind. Cryptic observations as have been made in the present case, which have been noted in the earlier part of the judgment, do not satisfy these requirements. The passing of interim order in such a manner is highly objectionable.
In Benara Valves Ltd. (supra) though, the Supreme Court was considering the language used in Section 35-F of the Central Excise Act wherein the word 'undue hardship to such person' and 'safeguard the interests of the Revenue' had been used but the observations made by it regarding 'undue hardship' should be kept in mind in other tax matters also. It opined that in Indian condition the expression 'undue hardship' is normally related to economic hardship. 'Undue hardship' means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. 'Undue hardship' is caused when the hardship is not warranted by the circumstances. For a hardship to be 'undue' it must be shown that the particular burden to observe or perform the requirement is out of proportion to the nature of requirement itself, and the benefit which the applicant would derive from compliance with it.
The interest of Revenue is also required to be taken into consideration.
Financial condition/hardship is an important consideration but then the businessmen, dealer etc. has to place relevant material in this regard showing dire financial condition. Income-tax Return are relevant material in this regard.
Thus, the discretion vested in the learned Tribunal and First Appellate Authority in matters of interim relief under a Taxing Statute such as the one under consideration is to be exercised judicially and it should be guided by the principles of law enunciated by precedents as aforesaid and not in dis-regard thereof as has been done in the present case.
Learned counsel for the revisionist has also relied upon the judgment of the Supreme court in the case of Mool Chand Yadav (supra). On a bare perusal of 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 of a certified copy of the order. It shall also be open to the First Appellate Authority to decide the appeal itself on merits within the aforesaid period. In order to facilitate the disposal of the applications for interim relief it is provided that for a period of thirty days or till disposal of interim relief applications, no coercive action shall be taken against the revisionist.
The revision is allowed in part.
Let a copy of this order be sent by the Senior Registrar of this Court to the Chairman, Commercial Tax Tribunal who in turn shall circulate it amongst the members and a copy be also sent to the Head of Trade Tax Department, Government of U.P.
A copy of this judgment shall also be kept on record of T.T.R. No. 56 of 2016.
Dated: July 11, 2016.