U.C. ENTERPRISES Vs. COMMISSIONER OF COMMERCIAL TAX

JUDGEMENT

(1.) Heard learned counsel for the petitioner and learned standing counsel. Through this revision under section 58 of the U.P. Value Added Tax Act, the revisionist has assailed order dated March 20, 2013 passed in Second Appeal No. 86 of 2013 relating to assessment year 2012-13.

(2.) According to the revisionist, he is a registered dealer and deals in purchase and sales of pukar gutkha and pan masala. The assessing officer, without any material on record, has imposed a penalty, against which, he preferred an appeal along with an application for stay of the disputed tax before the Additional Commissioner (Appeal)-II, who, stayed 70 per cent of the disputed tax, till disposal of the appeal. Feeling aggrieved, the revisionist preferred Second Appeal No. 86 of 2013 before the Trade Tax Tribunal Bench-I, Lucknow. The Tribunal, vide order dated March 20, 2013, partly allowed the appeal and modified the order passed by the Additional Commissioner (Appeal) to the effect that 80 per cent of the disputed tax shall remain stayed during the pendency of the first appeal. Feeling aggrieved, the revisionist preferred the instant revision, 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.

(3.) The learned counsel for the revisionist 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 revisionist and directed to make payment of 20 per cent 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.