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2015 DIGILAW 3951 (ALL)

Sourcewell Agro Products Pvt. Ltd. v. Commissioner of Commercial Tax

2015-12-11

SURYA PRAKASH KESARWANI

body2015
JUDGMENT Surya Prakash Kesarwani, J. -- Heard Sri Trapti Gupta, holding brief of Sri Ashok Kumar, learned counsel for the petitioner and Sri Nimai Das, learned counsel for the respondent. 2. This revision has been filed under Section 58 of the U.P. VAT Act 2008 challenging the order dated 30.11.2015 passed by the COMMERCIAL TAX TRIBUNAL, Bench-II, Ghaziabad in Second Appeal No.1347/2015 under Section 25(1) of the Act. 3. Undisputedly, the appeal of the revisionists against the Assessment Order dated 26.10.2015 passed by the Assessing Officer is pending before the Appellate Authority under Section 55 of the Act. The Appellate Authority granted 50% stay of the disputed amount and aggrieved with that the revisionist preferred the afore noted Second Appeal before the Tribunal. By the impugned order the Tribunal has stayed 70% of the disputed amount without recording any reason. 4. Submission of learned counsel for the revisionist is that the impugned order has been passed by the Tribunal without considering prima facie case and the financial hardship of the revisionist which was well argued before the Tribunal. The Tribunal has taken note of the argument but did not record any findings thereon and as such the impugned order of the Tribunal can not be sustained and deserves to be set aside. 5. Sri Nimai Das, learned standing counsel submits that the revisionist is engaged in the manufacture and sale of cattle feed in which he used certain taxable items as raw material but has not established its tax paid purchases or procurement by any documentary evidence. Under the circumstances, the Assessing Authority found that on first purchase made by the revsionist, tax has not been paid and consequently he assessed the revisionist to tax. He admits that appeal is pending before the Additional Commissioner (Appeals), Ghaziabad being Appeal No. 1878/2015. He submits that grant of stay of demand of disputed tax to the tune of 70% is most liberal approach adopted by the Tribunal which requires no interference. 6. I have carefully considered the submissions of the learned counsel for the parties. 7. The question whether the assessee could establish his source of procurement of raw material and whether the same was taxable or not is a matter pending before the Appellate Authority which is to be decided on appreciation of evidences and examination of facts. 6. I have carefully considered the submissions of the learned counsel for the parties. 7. The question whether the assessee could establish his source of procurement of raw material and whether the same was taxable or not is a matter pending before the Appellate Authority which is to be decided on appreciation of evidences and examination of facts. However, I find that while granting 70% stay of the disputed tax as against the 50% stay granted by the appellate authority, the Tribunal has neither recorded any reasons nor has commented upon the financial hardships of the applicant-revisionist. Considering the facts and circumstances of the case this revision is partly allowed, modifying the order of the Tribunal dated 30.11.2015 to the extent that instead of 70%, the demand to the extent of 80 % of the disputed tax shall remained stayed till disposal of the first appeal pending before the appellate authority, subject to the compliance of conditions as mentioned in the impugned order of the Tribunal. The appellate authority shall decide the appeal of the revisionist strictly in accordance with law, as expeditiously as possible preferably within six months from the date of production of a certified copy of this order, without being influenced by any of the observation made in the body of this judgment. 8. In result, the revision partly succeeds and is hereby partly allowed to the extent indicated above.