ASHWANI KUMAR MISHRA,J. - (1.) Revisionist at the relevant point of time was a registered dealer under the U.P. Vat Act and was carrying out business of selling and purchasing of food grains and other items.
(2.) It appears that an assessment order for the assessment year 2013-14 has been passed against the revisionist based upon some information received by the department with regard to certain transactions having been undertaken by it, which were not reflected in its books of account. An appeal against such order has been preferred, which is pending. An application for grant of interim protection was filed upon which the first appellate authority required the revisionist to deposit 40% of the disputed tax amount, which has been modified in second appeal by the Tribunal requiring the revisionist to deposit 10% while granting protection as against 90% of the value of goods.
(3.) Attention of the court has been invited to the observations contained in the order of the assessing authority, according to which alleged sales made by the revisionist was found not to have been supported by any tax invoice and the firm was also found not to be registered. It is contended that there is absolutely no basis for assessing authority to rely upon such non existing transaction so as to impose huge liability of tax upon the revisionist. It is submitted that strong prima facie case existed in favour of the revisionist which has not been examined. It is also contended that the revisionist firm had already closed its business since September, 2014 and its poor financial condition has also not been examined. It is also stated that since the order of Tribunal is absolutely silent on the relevant aspect i.e. with regard to existence of prima facie case as well as financial constraints of the revisionist, as such, it cannot be sustained. Learned counsel further places reliance upon a decision of this Court in Tata Motors Limited v. Commissioner Commercial Tax delivered in Trade Tax Revision No.65 of 2016 to contend that in the facts and circumstances of the present case, the order impugned is not sustainable and that the first appellate authority be directed to consider and decide the appeal on merits. Para 29 of the judgment, which is relied upon, reads as under:- "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.";