Anil Kumar - Heard Sri S. M. K. Chaudhary, learned Senior Advocate assisted by Sri Shubham Agarwal, advocate and Vaibhav Pandey, advocate for the petitioner and Sri Ajai Agarwal, learned standing counsel for the opposite parties.

With the consent of the learned counsel for the parties, the present revision has been decided at the admission stage.

Facts, in brief, as stated by Sri S. M. K. Chaudhary, senior advocate are that initially an order has been passed by the assessing authority under section 25(1) of the U.P. Value Added Tax Act, 2008. Aggrieved by the said order, the revisionist filed an appeal before the appellate authority on the ground that the impugned order passed by the assessing authority is not as per Schedule II of the Value Added Tax Act and an application for interim relief was also moved. By order dated October 21, 2010, the appellate court had granted an interim order to the effect that 25 per cent. of the disputed tax shall remain stayed.

The said order was challenged by way of second appeal before the Commercial Tax Tribunal and by means of impugned order dated October 27, 2010, the Tribunal had partly allowed the appeal with the direction that 45 per cent. of the disputed amount shall remain stayed. Hence, in view of the factual background the present revision has been filed by the revisionist challenging the order dated October 27, 2010 passed by the Tribunal.

Sri S. M. K. Chaudhary, learned counsel for the revisionist, submits that the impugned order dated October 27, 2010 is in contravention to the law as laid down by the honourable Supreme Court in the case of Pennar Industries Ltd. v. State of A.P. [2009] 39 NTN 126.

And also the law as laid down by this court in the case of Kribhco Shyam Fertilizers Ltd. v. Commissioner of Commercial Taxes, Lucknow reported in [2011] 43 VST 145 (All); [2009] 40 NTN 67 and Paradeep Phospates Ltd. v. Trade Tax Tribunal, Bench II, Commercial Tax, Lucknow [2010] 43 NTN 154, wherein it has held as under :

"Being aggrieved with the order dated 13th of May, 2010 passed by the Commercial Tax Tribunal, Lucknow, the petitioner has filed the present writ petition, whereby the petitioner's application for interim relief has been entertained by exempting from payment of 85 per cent. of assessment amount from deposition at the stage of interim relief, subject to furnishing the security, whereas the learned counsel for the petitioner submits that the tax assessed against the petitioner is unsustainable in the light of the circulars dated 14th of February, 2003 and 13th of August, 2002, which have been brought on record. He further submits that once the demand is unsustainable the court should consider it and should not be asked to deposit the amount at the time of consideration of the application for interim relief as has been held by the honourable Supreme Court in the case of Pennar Industries Ltd. v. State of A.P. reported in [2009] 39 NTN 126 (SC) and Kribhco Shyam Fertilizers Ltd. v. Commissioner of Commercial Taxes, Lucknow reported in [2011] 43 VST 145 (All); [2009] 40 NTN 67.

Considering the facts and circumstances of the case, I hereby modify the order dated 13th of May, 2010 passed by the Commercial Tax Tribunal, Lucknow, to the extent that the Tribunal shall proceed with the appeal and decide the same expeditiously on the merit without asking further to deposit any amount at the stage of stay."

In view of the abovesaid fact, learned counsel for the revisionist submits that the impugned order dated October 27, 2010, passed by the Commercial Tax Tribunal, Lucknow, is liable to be set aside and the matter may be remanded back to the Commercial Tax Tribunal to decide afresh in accordance with law.

I have heard the learned counsel for the parties and gone through the record.

For the foregoing reasons, in view of the law as laid down by the honourable apex court in the case of Pennar Industries Ltd. [2009] 39 NTN 126, and by this court, in case of Paradeep Phospate