Allahabad High Court
M/S Kone Elevator India Private Ltd. vs Commissioner Of Commercial Tax U.P. ... on 26 November, 2020
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 38 Case :- SALES/TRADE TAX REVISION DEFECTIVE No. - 33 of 2020 Revisionist :- M/S Kone Elevator India Private Ltd. Opposite Party :- Commissioner Of Commercial Tax U.P. Lucknow Counsel for Revisionist :- Krishna Agarawal Counsel for Opposite Party :- C.S.C. Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the parties.
The revision is admitted on the following questions:
"(I) Whether the Tribunal and the Authority below have failed to consider the strong prima facie case in favour of the Revisionist in view of the astronomical demand based on presumption without any material on record and arbitrary in nature?
(III) Whether the Tribunal and the Authorities below in view of the judgement of the Division Bench in the case of ITC vs. Commissioner Appeals (MANU/UP/0515/2003:2005 (184) E.L.T. 347), followed in Honda Siel Cars vs. Commissioner of Commercial Taxes, Lucknow [2010 UFTC 1152] and KribhcoShyam Fertilizers Ltd. vs. CST (2009 UPTC 626) as well as the decision in Pennar Industries Limited v. State of Andhra Pradesh (MANU/SC/0160/2009 :2009 Vol. (39) NTN Page 126) and the decision of this Court dated 06.06.2018 in TTR No. 53 of 2018 and decision dated 03.05.2015 in TTR No. 47 of 2015 (A.Y. 2011-12) and decision dated 30.5.2016 TTR No. 70 of 2016 (A.Y. 2012-13) is justified in not granting complete stay to the revisionist during the pendency of first appeal?"
As a very short point is involved, the revision is being heard finally.
The present revision relates to the Assessment Year 2014-15. It is alleged that the Assessing Authority, vide order dated 20.3.2020, under section 28(2) of the VAT Act (hereinafter referred to as the 'Act') enhanced the turn over giving rise to a disputed tax liability of Rs. 50,90,63,883/-. The said order of assessment was challenged before the appellate authority which was allowed vide order dated 28.12.2018 and the matter was remanded before the Assessing Authority. The Assessing Authority, on demand, passed a fresh order on 19.9.2020 and enhanced the turnover over of Rs. 70,15,60,861/- fixing the disputed tax at Rs. 58,60,66,802.
Aggrieved against the assessment order, the revisionist has filed an appeal before the First Appellate Authority challenging the aforesaid exaggerated demand of tax and prayed for stay during the pendency of the appeal. The First Appellate Authority granted a stay of demand up to extent of 65% of the tax vide order dated 14.10.2020.
Aggrieved against the said order dated 14.10.2020, the revisionist preferred an appeal before the Commercial Tax Tribunal, NOIDA and the Tribunal, vide order dated 28.10.2020, granted a stay of demand upto the extent of 90% of the tax and thus the revisionist had to deposit a sum of Rs. 10% of the tax due as a stay of entire demand. The said order dated 28.10.2020 has been challenged by the present revision.
A perusal of the order dated 28.10.2020 reveals that while deciding the stay application the Tribunal recorded that at that stage prima facie case was made out and direction for deposit of the entire amount would cause undue financial hardship to the appellant, however, despite recording the said proceeded to stay only 90% of the tax.
It is well settled that while deciding the waiver application, the authority concerned has to record a finding as to whether a prima facie case is made out or not and whether the deposit would entail undue financial hardship. It is also well settled that the phrase 'prima facie case' would include even an arguable case, I am unable to understand as to why and what circumstances did the Tribunal direct the deposit of 10% of the amount after having recorded that a prima facie case was made out and the deposit would cause financial hardship to the revisionist. I have no hesitation in holding that the order dated 28.10.2020 is wholly arbitrary, illegal and contrary to the law laid down in catena of judgements in the case of ITC vs. Commissioner Appeals (MANU/UP/0515/2003:2005 (184) E.L.T. 347), followed in Honda Siel Cars vs. Commissioner of Commercial Taxes, Lucknow [2010 UFTC 1152] and KribhcoShyam Fertilizers Ltd. vs. CST (2009 UPTC 626) as well as the decision in Pennar Industries Limited v. State of Andhra Pradesh (MANU/SC/0160/2009 :2009 Vol. (39) NTN Page 126).
The counsel for the revisionist has filed a supplementary affidavit drawing the attention of this Court to the fact that after filing of the revision and without affording reasonable time, the respondent authorities have recovered the amount by attaching the account of the revisionist. He submits that the said action of the Department is contrary to the Mandate to this Court in the case of M/s Hamdard (Waqf)Laboratories vs. State of U.P. and others, 2013 (5) ALJ 133 as well as the another Circular of the Department dated 09.09.2011, however, in view of the fact that the revision is confined to the challenge of the order passed by the Tribunal, this Court in exercise of its revisional power cannot direct any refund of the amount, which according to the counsel for the revisionist, are illegally debited from the account of the revisionist. The revisionist, if so advised, may take appropriate proceedings for refund of the said amount.
Accordingly, the revision is allowed on the questions of law framed. The question is decided in favour of the assessee and against the Department.
It is further directed the first Appellate Court shall proceed to hear the appeal on merits and decide the same in accordance with law with all expedition.
Order Date :- 26.11.2020 Puspendra