TaxTMI 
TaxTMI 
2005 (2) TMI 802
X X X X Extracts X X X X
X X X X Extracts X X X X
....d by the Joint Excise and Taxation Commissioner (Appeals), Faridabad (respondent No.3) and the Tribunal, respectively. The petitioner is a registered dealer under the Haryana General Sales Tax Act, 1973 (for short, "the State Act") and the Central Sales Tax Act, 1956. For the assessment year 2000-01, the Excise and Taxation Officercum-Assessing Authority, Faridabad, (respondent No.4) created a demand of Rs. 9,84,517 against the petitioner. The latter challenged the same by filing an appeal under section 39 of the State Act. It also filed an application under section 39(5) for stay of the demand. By an order dated November 28, 2004 respondent No.3 entertained the appeal subject to the condition that the petitioner shall deposit the amount in....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... conditional order passed by respondent No.3, the petitioner filed an appeal before the Tribunal which was disposed of vide order dated March 4, 2004 (annexure P5). The Tribunal directed that the demand created by respondent No.4 shall be deposited in 12 equated monthly instalments. The operative part of the order passed by the Tribunal reads as under: "Keeping in view that when dealer had raised that turnovers in the year 2000-01 and 2001-02 which must have brought him rich profits, we do not see any reason to stay the recovery of tax demand. We, however, provide him some succour and allow him to deposit the tax demand in 12 equated monthly instalments. First instalment shall be payable on or before 25th of each of subsequent month. Wit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gh, the petitioner's turnover for the years 2000-01 and 2001-02 was Rs.75,00,000 and Rs.73,12,219, respectively, for the succeeding years, i.e., 2002-03 and 2003-04, it had come down to Rs.34,00,000 and Rs.30,00,000 respectively and argued that the Tribunal committed an error by refusing to entertain its prayer for stay. In the end, he submitted that even if the court is not inclined to interfere with the impugned orders, the time for deposit of the second instalment may be extended. We have given serious thought to the arguments of the learned counsel. The question whether the High Court can, in exercise of jurisdiction under article 226 of the Constitution of India, interfere with the discretion exercised by the competent author....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion 39(5) are complied with, the appeal is born for being disposed of on merits after hearing both the sides. . . . the inability mentioned in the first proviso to section 39(5) refers to the paying capacity and financial position of the company and its scope cannot be widened to the extent as suggested by the respondent. The word 'pay' with its grammatical variation and cognate expressions, when used with reference to the tax amount, means 'deliver and render' the amount, it indicates the discharge of an obligation rather than an investment of money. 'To pay' is a generic term and the rest of the proviso refers to the modes of payment. It may mean the payment of the amount of tax assessed. The dictionary meaning....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... orders are examined in the light of the aforementioned judgment, we do not find any difficulty in rejecting the contention of the learned counsel that the Tribunal had erred in refusing to entertain the petitioner's prayer for stay. It is an undisputed position that for the years 2000-01 and 2001-02, the turnover of the petitioner was Rs.75,00,000 and Rs.73,12,219. This by itself is indicative of the fact that the petitioner's financial position was sound and it was in a position to pay the additional demand created by respondent No.4. Therefore, we do not find any valid ground to interfere with the discretion exercised by respondent No.3 and the Tribunal against the stay of demand created by respondent No.4. We are further of t....