AJAI LAMBA,J. - (1.) Ms JSB Cement LLP, a limited liability partnership firm, has preferred this writ petition with the following prayers- In the premises aforesaid, it is therefore respectfully prayed that Your Lordship's may graciously be pleased to admit this petition, call for the records of the case and issue a Rule calling upon the Respondents to show cause as to why a Writ in the nature of Certiorari andor any other writ, order or direction of like nature should not be issued quashing and setting aside the impugned order dated 03.09.2019 issuedpassed by the Deputy Commissioner of Taxes (Appeals), Guwahati, Assam and as to why a Writ in the nature of Mandamus andor any other appropriate Writ, Direction andor order should not be issued declaring section 79(5) of the Assam Value Added Tax Act, 2003, in so far as the same fails to provide discretion to the Appellate Authority for staying, reducing or waiving off pre-deposit, as unconstitutional and ultra vires and why a writ in the nature of Mandamus should not be issued directing the Deputy Commissioner of Taxes (Appeals) ic, Guwahati, Assam to waive off the pre-deposit of 25% and admit the appeal and hear the appeal filed by the petitioner on merits and after hearing the parties be further pleased to make the rule absolute andor pass such orderorders as Your Lordships may deem fit and proper. -AND- Pending disposal of the instant Writ Petition, your Lordships may be pleased to stay the impugned order dated 03.09.2019 issuedpassed by the Deputy Commissioner of Taxes (Appeals), Guwahati, Assam and all other proceedings in pursuance thereto andor pass any such further OrderOrders as Your Lordships may deem fit and proper in the ends of justice.
(2.) Mr. P. Baruah, learned counsel for the petitioner has been fair to the Court in contending that although the vires of Section 79(5) of the Assam Value Added Tax, 2003 have been challenged, however, the principle of law propounded by virtue of this petition has already been dealt with by the Hon'ble Supreme Court of India and the issue has been decided against the cause carried by the petitioner before this Court.
(3.) Section 79(5) of the Act of 2003 reads as under- No appeal by a person shall be entertained by an Appellate Authority unless such appeal is accompanied by satisfactory proof of payment of minimum twenty five percent of the disputed tax, penalty, if any, imposed and the interest accrued thereon, if any; Provided that such authority may stay the recovery of the full or part of the balance amount of tax, interest and penalty, till disposal of the appeal.;