RAVI GUPTA versus COMMISSIONER SALES TAX, DELHI AND ANR.

Citation: [2009] 5 S.C.R. 110 · Decided: 27-03-2009 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Disposed off

Judgment (excerpt)

[2009] 5 S.C.R. 110 
_, 
A 
RAVI GUPTA 
~ 
v. 
COMMISSIONER SALES TAX, DELHI AND ANR. 
(Civil Appe!al No. 1965 of 2009) 
B 
MARCH 27, 2009 
[DR. ARIJIT PASAYAT AND ASOK KUMAR 
-. 
GANGUL Y, JJ.] 
Delhi Sales Tax Act, 1975- s. 43 (5)- Nature and scope 
c of - Demand of tax under the Act and Central Sales Tax Act 
on account of failure to produce declaration forms - Appeal 
-
before Appellate Tribunal - Dismissed as not entertainable 
as neither the documents were furnished nor pre-deposit 
made - Held: Order in terms of s. 43(5) is essentially an order 
D of stay - While granting stay, though discretion is available, 
the same has to be exercised judiciously - On facts, since 
t 
the assessee deposited the amount as directed by Supreme 
Court at admission stage, direction to Tribunal to hear the 
matter on merits - Central Sales Tax Act, 1956. 
E 
Interlocutory Order-- Stay order- Grant/denial of - When 
- Discussed. 
Demand of tax was made by respondent-Revenue 
on the ground that assessee did not furnish requisite 
F declaration forms. Appellate authority affirmed the order. 
Assessee filed appeal before Appellate Tribunal, Value 
" 
Added Tax, Delhi. He also filed application uls 43(5) of 
Delhi Sales Tax Act, 11975 to dispense with pre-deposit 
which is condition precedent for entertaining the appeal. 
G Tribunal directed pre-deposit of 3 crores. Despite the time 
given, when the as;sessee neither produced the 
documents nor did hu deposit the amount as directed, 
-~ 
the appeals were dismissed as not entertainable. Hence 
... 
the present appeal. 
H 
110 
RAVI GUPTA v. COMMISSIONER SALES TAX, DELHI 
111 
ANDANR. 
't, 
Disposing of the appeal, the Court 
A 
., 
HELD: 1. The appellate authority has a discretion not 
to insist on payment as a condition precedent to entertain 
the appeal, for which the reasons have to be recorded in 
·writing. The order in terms of Section 43(5) of Delhi Sales B 
" 
Tax Act, 1975 is essentially an order of stay. Three things 
are to be considered by the Tribunal, while dealing with 
the application for dispensing with the pre-deposit. They 
are: the prima facie case, balance of convenience and 
irreparable loss. [Para7] [116-C-D] 
c 
-< 
2. It is true that on merely establishing a prima facie 
case, interim order of protection should not be passed. 
But if on a cursory glance, it appears that the demand 
raised has no leg to stand, it would be undesirable to 
require the assessee to pay full or substantive part of the D 
_.. 
demand. [Para 1 OJ [116-GJ 
3. In matters relating to grant of stay pending 
disposal of the matters, though discretion is available, the 
same has to be exercised judiciously. Petitions for stay E 
should not be disposed of in a routine manner unmindful 
of the consequences flowing from the order requiring the 
assessee to deposit full or part of the demand. There can 
be no rule of universal application in such matters and 
the order has to be passed keeping in view the factual 
F 
y 
scenario involved. Merely because this Court has 
indicated the principles that does not give a license to the 
-; 
forum/authority to pass an order which cannot be 
I , 
sustained on the touchstone of fairness, legality and 
public interest. Where denial of interim relief may lead to 
G 
p!,!blic mischief, grave irreparable private injury or shake 
a citizens' faith in the impartiality of public administration, 
t-· 
interim relief can be given. [Paras 8 and 1 OJ [116-D-E; G-
-/ 
H; 117-A~BJ 
Sil/iguri Municipality an.d Ors. v. Amalendu Das and Ors. 
H 
112 
SUPREME COURT REPORTS 
[2009] 5 S.C.R. 
A AIR 1984 SC 653:; Mis Samarias Trading Co. Pvt. Ltd. v. S. 
Samuel and Ors. AIR 1985 SC 61 and Assistant Collector 
of Central Excise v. Dunlop India Ltd. AIR 1985 SC 330, 
Relied on. 
8 
4. In the instant case the only plea which the 
appellant was pressing into service was that if 
declaration forms are produced, the ultimate demand 
would not exceed Rs. 15 lakhs. As ample opportunity has 
been granted to the appellant to produce the declaration 
forms, that apparently has not been done. It was directed 
C by this court while issuing notice on Special Leave 
Petition that on payment of Rs. 1,00,00,000/-, realization 
of the balance payment shall be stayed until further 
orders. Since the amount has been deposited, it is 
directed that the1 Tribunal shall hear the appeal on merits 
D without insisting on any further deposit in terms of 
Section 43(5). [Para 11 and 12] [117-C-E] 
E 

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