Durga Trading Company vs Commissioner of Commercial Tax U.P. Commercial

Rajiv Sharma, J.—Heard learned Counsel for the Petitioner and learned Standing Counsel.

Through this writ petition under Article 226 of the Constitution of India, the Petitioner has assailed the order dated 11.5.2011 passed by Respondent No. 2 in Second Appeal No. 195 of 2011 as contained in Annexure No. 7 to the writ petition.

Petitioner-M/s Durga Trading Company, engaged in a business of Pan Mashala and Gutka, sells his products in the name and style of Pukar Gutkha. For the Assessment Year 2008-2009, the Respondent No. 4 imposed a penalty of Rs. 24,60,83,676.00 u/s 28/32 of U.P. Vat Tax Act. Feeling aggrieved, the Petitioner filed an appeal along with an application for stay before the Respondent No. 3, which was registered as First Appeal No. 241 of 2011. The Additional Commissioner Grade-II, vide order dated 11.4.2011, stayed 60% of the disputed tax, till disposal of the first appeal.

Against the order dated 11.4.2011, the Petitioner preferred second appeal before the Trade Tax Tribunal Bench-I, Lucknow, which was numbered as Second Appeal No. 195 of 2011. The Tribunal, vide order dated 11.5.2011, partly allowed the appeal and modified the order dated 11.4.2011 passed by the Additional Commissioner to the effect that 75% of the disputed tax shall remain stayed during the pendency of the first appeal. Feeling aggrieved, the Petitioner preferred the instant writ petition inter alia on the grounds that the Tribunal did not consider the relevant facts and the financial stringency. Further, in a number of decision, this Court has held that undue hardship as well as the entire relevant factors are to be considered and if the financial hardship is not considered, then, the purposes of filing the appeal itself becomes nugatory and illusory.

Learned Counsel for the Petitioner submits that the Tribunal decided the matter without considering the financial stringency shown in the affidavit in support of the application for interim relief as well as the Bank account of the Petitioner and directed to make payment of 25% of the disputed tax in a most arbitrary and illegal manner and without proper application of mind to the facts of the case. He submits that the power of stay should be judicially exercised and the order should be passed after proper application of sound principles for exercising discretion and the application of stay should be treated casually and the authority should not pass the routine order.

In support of the aforesaid submissions, learned Counsel for the Petitioner has relied upon the judgment of the Apex Court in the case of Income Tax Officer v. M.K. Mohammad Kunhi AIR 1969 SC 430, Mehsana District Cooperative Mill Pvt. Ltd. v. Union of India 2003 (154) E.L.T. 348 (SC) and Shri Kihota Hollohon Vs. Mr. Zachilhu and others, and this Court''s judgment in the case of M/s Moriroku Ut India Pvt. Ltd. Noida v. Union of India and Ors. reported in 2006 UPTC 274.

Relying upon the judgment of this Court in the case of Tata Coffee Ltd. v. Commissioner of Trade Tax reported in 2002 UPTC 156, learned Counsel for the Petitioner submits that while considering the waiver cum stay, the Tribunal ought to have considered the prima facie merit of the case as well as financial condition of the applicant.

During the pendency of the statutory appeal, the Tribunal is required to look into the prima facie merit of the case as well as financial condition of the applicant. Further, the appellate authority is required to consider the relevant factor like financial hardship and other relevant facts because the condition of deposit will make the purpose of filing of appeal itself nugatory.

Considering the peculiar facts and circumstances of the case, the writ petition is partly allowed. The order 11.5.2011 passed by the Tribunal is modified to the extent that 90% of the disputed tax shall remain stayed till disposal of the first appeal and the Petitioner shall deposit 10% of the disputed tax within a month and also furnish the security for the remaining amount to the subjective satisfaction of the assessing authority.