( 1 ) ORDER dated 26. 8. 1999 disposing of revision petitions under Section 47 of thedelhi Sales Tax Act, 1975 (in short, the Act ) and Section 9 (2) of the Central Salestax ACt, 1956 (in short, the Central Act ) forms subject matter of challenge in this with petition.

( 2 ) BACKGROUND in which the writ petition has come to be filed is as follows :petitioner has been assessed to extra demands of Rs. 2,34,93,150. 00 and Rs. 1,43,44,384. 00 under the Act and Central Act respectively. Appeals have been filedagainst he said orders of assessment. Simultaneously an application for stay hadbeen filed, The Additional Commissioner No. 1 directed payment of Rs. 20 lakh andrs. 5 lakh respectively. By the impugned revisional order, the commissioner reducedthe quantum to Rs. 15 lakhs and Rs. 3 lakhs respectively. An application for review ofthe order was turned down by the order dated 25. 1. 2000 However, time for depositasstipulated by the earlier order was extended.

( 3 ) THE grounds on which the demands have been raised under the Act and thecentral Act, are, as per orders of assessment, as follows :

( 4 ) ACCORDING to learned counsel for petitioner, requirement of pre-deposit isunreasonable restriction on the right to file an appeal against an adverse adjudication. In any event, according to him, imposition of stringent conditions makes the rightillusory. In the case at hand, it is submitted that the authorities lost sight of the actualfactual position and acted on surmises and conjectures to levy huge extra demands. Several documents have been pressed into service to show that the assessmentswere unsustainable. Additionally, it is urged that precarious financial position of thepetitioner makes it impossible to comply with the conditions. It is further submittedthat on a careful consideration of the relevant materials, the assessment will not standthe test of appeal. Liquidation of the amounts directed to be deposited would causeundue hardship to the petitioner. In essence it is submitted that the discretion o1dispensing with pre-deposit has not been judiciously exercised. Learned counsel for the Revenue, on the other hand, submitted that the documentsand materials placed on record were duly analysed by the assessing officer and theconclusions are in order. Petitioner has not made out a case for being granted stay realisation of the extra demands. Nowhere before the first appellate authority or therevisional authority any financial stringency was pleaded and for the first time withoutany material to support the stand, a contention cannot be raised. It is pointed out thatagainst the demand of more than Rs. 3 crores. only Rs. 18 lakhs have been directe (to be paid.

( 5 ) SECTION 43 (5) appearing in Chapter 8 of the Act deals with the filling of andappeal, where it has clearly stipulated that no appeal against the assessment with owithout penalty or order imposing penalty shall be entertained unless such an appeallis accompanied by satisfactory proof of payment of the tax with or without penalty itrespect of which appeal has been preferred. However, a discretion has been conferrence on the authority to entertain an appeal for reasons to be recorded in writing theinsistence on full amount being paid, need not be there furnishing any prescribeamount of security for the amount as may be directed ordeposit of smaller sum theraised as extra demand.

( 6 ) REQUIREMENT of deposit of the amount in dispute is a condition precedent forentertaining the appeal and not for filing the appeal. The provisions are mandatory!nature and failure to deposit the amount in question would render the appeal;incompetent. While considering an application for grant of stay, the concerneauthority has to, inter alia, consider the following aspects :

(A) Whether there is prima facie case in favour of the assessee. (b) the balance of convenience qua deposit or otherwise. (c) Irreparable loss, if any, to be caused in case stay is not granted. (d) Safeguarding