D.K. JAIN, J.

On being pointed out that five independent dealers, with different demands, cannot be permitted to file a common petition, Mr. R. C. Chawla, learned counsel for the petitioners, prays that the present petition may be confined to the first petitioner, namely, M/s. Jagannath Dudadhar. We order accordingly.

The challenge in this writ petition under article 226 of the Constitution, is to a consolidated order dated October 31, 2002/November 7, 2002, passed by the Appellate Tribunal, Sales Tax, Delhi (for short "the Tribunal"), under section 43(5) of the Delhi Sales Tax Act, 1975 (for short "the Act"), in Appeals Nos. 51 to 53/STT/02-03, pertaining to the assessment years 1998-99 (Local and Central) and 1999-2000 (Local) respectively. By the impugned order, the Tribunal has directed the petitioner to make a pre-deposit of Rs. 5,08,40,000 as a pre-condition for entertaining their appeals pending before the Additional Commissioner (Appeals). Out of the said amount, a sum of Rs. 3,21,00,000 has been directed to be deposited in cash and for the remaining amount, the petitioner is required to furnish surety.

Shorn of unnecessary details, the material facts giving rise to the present petition, are that during the course of assessment proceedings for the relevant assessment years, the assessing officer while noticing that sales claimed to have been made to registered dealers were not proved and there had been contravention of the declarations on which purchases were made without payment of tax, disallowed : (i) the claims for deductions made by the petitioner under sections 4(2)(a)(i), (iii) and (vi) of the Act; (ii) claim for concessional levy under section 8(5) of the Act; made addition under the third proviso to section 4(2) and estimated gross turnover on best judgment. All this resulted in creation of the following additional demand :

---------------------------------------------------------------------------- Name Year Tax Interest Penalty ---------------------------------------------------------------------------- M/s. Jagannath Dudadhar 1998-99 (L) 6,21,21,387 2,32,34,429 8,34,31,766 ---------------------------------------------------------------------------- -do- 1998-99 (C) 3,60,840 1,46,140 3,60,840 ---------------------------------------------------------------------------- -do- 1999-2000(L) 6,42,67,841 1,26,08,404 1,42,69,690 ----------------------------------------------------------------------------

Thus, a total demand of Rs. 12,67,50,068 on account of tax only, was created in respect of the two assessment years.

Aggrieved, the petitioner preferred appeals to the Additional Commissioner (Appeals) along with an application for stay of the disputed demand. The Additional Commissioner directed the petitioner to deposit 25 per cent of the disputed tax and penalty, as a condition precedent for entertaining the appeals preferred by the petitioner. Not being satisfied with the said order, the petitioner carried the matter in further appeal to the Tribunal. By the impugned order, the Tribunal has directed the petitioner to deposit the aforenoted amounts. Being still aggrieved, the petitioner is before us.

We have heard learned counsel for the parties.

Assailing the said order as unreasonable, onerous and incapable of being complied with on account of precarious financial condition of the petitioner, it is vehemently submitted by Mr. R. C. Chawla, learned counsel for the petitioner, that the Tribunal has not only lost sight of the actual factual position, it has also failed to apply the settled principles governing a stay application under section 43(5) of the Act. Learned counsel would submit that while bringing to tax all the purchases made by the petitioner for inter-State sales under the third proviso to section 4(2) of the Act, the Sales Tax Officer has again subjected to tax all the sales made to local de