IMPORTANT POINT
If prima facie the demand raised is not justified, it would be undesirable to require the assessee to pay full or substantive part of the demand.

JUDGMENT

Dr. Arijit Pasayat, J.—

1. Leave granted.

2. Challenge in this appeal is to the order passed by a Division Bench of the Delhi High Court dismissing the Writ Petition (C) No. 9446 of 2006 filed by the appellant.

3. The factual position is almost undisputed and needs to be noted in brief.

The appellant is a dealer registered under the Delhi Sales Tax Act, 1975 (in short the ‘Act’) and Central Sales Tax Act, 1956 (in short the ‘CST Act’). Assessments were completed by the Assessing Officer for the assessment years 1999-2000, 2000-2001 and 2001-2002 under the Act and CST Act. The total demand raised was in the neighbourhood of Rs.8.3 crores. The major portion of the demand was raised on the ground that the assessee did not furnish the requisite declaration forms i.e. Form No.ST-1 under the Act and Form C and Form E-1 under the CST Act. The Assessing Officer was of the view that ample opportunity was granted to the appellant to produce the declaration forms which it failed to furnish. Therefore, the demands were raised. Before the First Appellate Authority, the appellant prayed for further time to produce the declaration forms which was declined. There was no appearance when the matter was fixed before the first Appellate Authority. Since the appellant failed to get any relief from the first Appellate Authority, it moved the Appellate Tribunal, Value Added Tax, Delhi (in short the ‘Tribunal’) in six appeals. Alongwith the appeal an application in terms of Section 43(5) of the Act was filed to dispense with the pre-deposit which is condition precedent for entertaining the appeal.

At the first instance, the Tribunal after considering the rival stands, more particularly, that the declaration forms would be produced directed the payment of Rupees three crores in respect of the demands raised on the Act and the CST Act. Questioning the correctness of the order, appellant filed a Writ Petition before the Delhi High Court which was numbered as WP (C) No.11822 of 2005. The High Court by order dated 26.9.2005 disposed of the writ petition with the following directions:

“Considering the facts and circumstances of the case, we allow the petitioner a final opportunity of six weeks to place all such documents and the statutory forms before the appellate authority to satisfy that the petitioner is entitled to such benefit in the rate of tax. In case the petitioner is able to produce such evidence before the appellate authority, in terms of this order, it will be considered by the appellate authority and appropriate orders shall be passed by the appellate authority in terms of sub clause (5) of Section 43 of the Act by making a review of the order which is under challenge in this writ petition. The petitioner shall produce the aforesaid evidence before the appellate authority within six weeks. In case the petitioner is not able to produce such evidence, they shall be liable to make the pre-deposit in terms of this order. As and when an order under Section 43 sub-section (5) is passed by the appellate authority the petitioner shall abide by same.”

As the appellant did not produce the records, the Tribunal held that the appellant was required to deposit Rupees three crores as directed earlier. Therefore, it was held that because of such non-production and non-deposit of a sum of Rs.3 crores as directed earlier, the appeals were not entertainable. Questioning the correctness of the order, Writ Petition (C) No.9446 of 2006 was filed which was dismissed by the impugned order on the ground that the appellant had not complied with the earlier order and, therefore, the Tribunal was left with no option but to dismiss the appeals as not entertainable.

4. In support of the appeal, learned counsel for the appellant submitted that the Tribunal and the High Court failed to appreciate that large number of declaration forms from various parties were to be collected and because of situation beyond control of the appellant, the forms could not be produc