1994 (12) TMI 307

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....tion Commissioner (Appeals), Faridabad, and also prayed for the stay of recovery and entertainment of appeals without prior payment of tax. The appellate authority rejected the request for stay of recovery but allowed the petitioner to make payment in monthly instalments of Rs. 10,000 payable by 20th of each month starting from November, 1991. Still not satisfied with the order, the petitioner filed an appeal before the Sales Tax Tribunal, Haryana. The Tribunal after considering the submissions made by the parties and the financial position of the petitioner, found that total amount involved was more than Rs. 5 lacs and the documents furnished by the petitioner did suggest that it was unable to make payment of the demand as directed by the ....

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....of the proviso to sub- section (5) of section 39 of the Act and no finding has been recorded in regard to its ability to pay the amount. There is merit in this contention. According to section 39(5) of the Act, no appeal can be entertained unless it is filed within prescribed time and the appellate authority is satisfied that the amount of tax assessed and the penalty and interest, if any recoverable has been paid. The proviso to sub-section (5), however, enables the appellate authority to entertain an appeal without prior deposit of the assessed tax provided the appellate authority is satisfied that the person filing the appeal is unable to pay the whole of the amount of tax assessed or the penalty imposed or interest due. Therefore, while....