2008 (11) TMI 653

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.... the order dated October 22, 2008 passed by the Trade Tax Tribunal by which the Trade Tax Tribunal has given to the revisionist partial relief of stay of 80 per cent of the tax demanded on entry tax but has refused 20 per cent of the pre-deposit by saying that the same can be agitated during the course of the appeal. The period for which the provisional assessment has been made is from January to June 2008. The questions of law referred to are as follows: "(1) Whether even otherwise Entry Tax Act is invalid, illegal and void being violative of articles 301 and 304 of the Constitution of India as held by the honourable court in the case of Indian Oil Corporation Limited v. State of Uttar Pradesh [2007] 10 VST 282 (All) in its judgment ....

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....urea for which the raw material is natural gas, which it purchases from the Gas Authority of India Limited (hereinafter referred to as GAIL). The petitioner contends that the GAIL has opened its terminal/branch at Pipraula District Shahjahanpur where the factory of the revisionist is situated and therefore the revisionist contends that the raw material is purchased within local area itself and therefore the demand for entry tax from the revisionist-company is not justified as the same has already been deposited by the GAIL after realizing it from the revisionist and remain in deposit with the State. The contention of the revisionist is that the GAIL has realized the entry tax as it is the party, which has brought natural gas within th....

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....s not been able to show that it is in any kind of the financial distress. However in view of the settled decisions of this court in a case where prima facie there is clear evidence to establish that the disputed tax which is being charged being paid or is not payable, then the financial capacity of assessee is not the sole criteria for either accepting or rejecting the prayer made by the assessee for stay or waiver of pre-deposit. In the same impugned order, while extending the stay of deposit, the authority has given also no cogent reason for extension of pre-deposit to 80 per cent. In view of the facts and circumstances of the case, the assessee was relying on evidence to show that the deposit was not necessary to extend 100 per ....