TMI Blog2014 (4) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... ently, dismissing his appeal when he failed to fulfil such condition - The Tribunal could have either permitted the appellant to suitably amend the prayer or if the appellant was not willing to do so, dismiss his appeal as not maintainable - the Tribunal could not have by-passed the first appellate authority and statutory requirement of pre-deposit, unless it was waived by an order in writing - Earlier order of Tribunal quashed - Assessee directed to amend the appeal - Matter remitted back to Tribunal for fresh consideration - Decided in favour of Assessee. - TAX APPEAL NO. 688 of 2013 With CIVIL APPLICATION NO. 422 of 2013 - - - Dated:- 30-1-2014 - MR. AKIL KURESHI AND MS SONIA GOKANI, JJ. FOR THE APPELLANT : MR HARDIK P MODH, ADVOCATE FOR THE RESPONDENT : MR JAIMIN GANDHI, LD.ASST.GOVERNMENT PLEADER ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) The appeal is ADMITTED and taken up for final hearing straight away. 2. The appellant has challenged the judgment dated April 29, 2013 passed by the Gujarat Value Added Tax Appellate Tribunal at Ahmedabad (hereinafter referred to as 'the Tribunal') in the following factual background : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed this appeal u/s.73 of the Gujarat Value Added Tax Act against the order dt.31.3.2011 passed by the Deputy Commissioner of Commercial Tax, Appeal-1, Ahmedabad (hereinafter referred to as 'the appellate authority'). The appellate authority was pleased to dismiss the appeal on the ground that the appellant did not pay 25% of the pre-deposit of the demand. The appellate authority thereby was pleased to confirm the assessment order dt.17.01.2010 passed by the Assistant Commissioner of Commercial Tax (2), (Investigation) Appeal-2, Ahmedabad (hereinafter referred to as 'the appellate authority'). The appellate authority has held that the appellant is liable to pay ₹ 85,55,659/-. 2. The appellant has raised contention regarding bona fide case of double taxation as well as Remission of tax, interest and penalty u/s.41(1) of the Act. In view of the same, appeal is required to be admitted. 3. As regard stay application is concerned, the appellant is liable to pay following amount as per assessment order as under : Tax 41,81,169/- Interest 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g, we make it clear that the appellant's application for remission under Section 41(1) of the Act is still pending before the State Government and this will not come in the way of the authority to decide the said application. The same shall be decided on its own merits and in accordance with law. 16. Subject to the above, we pass the following order : ORDER 17. This appeal is partly allowed. Tax demand raised against the appellant is hereby confirmed. Interest charged is deleted. Penalty under Section 34(8) is reduced to ₹ 15,29, 805/-. There shall be no order as to costs. 3. We are of the opinion that the Tribunal committed serious error in examining the appellant's grievances on the merits of the order of assessment. The order of assessment was passed by the adjudicating authority, which was appellable by way of first appeal before the Appellate Commissioner. Section 73(4) of the Gujarat Value Added Tax Act, 2003, requires that no appeal against the order of assessment shall ordinarily be entertained by the Appellate Commissioner, unless such appeal is accompanied by proof of payment of tax in respect of which the appeal has been preferred. Proviso to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndition of part pre-deposit on the appellant, the Tribunal accepted the appellant's Second Appeal as if there was no intermediary stage of the appeal before the Appellate Commissioner or any requirement of pre-deposit under section 73(4) of the Act. We cannot lose sight of the fact that the appellant himself also substantially contributed to this complication. In the appeal, his main grounds were against the assessment order. His prayers pertained only to the issues on merits about the additions made by the Assessing Officer. There was no prayer for setting aside the appellate order of imposing condition and subsequently, dismissing his appeal when he failed to fulfil such condition. Even if it were so, the Tribunal could have either permitted the appellant to suitably amend the prayer or if the appellant was not willing to do so, dismiss his appeal as not maintainable. In our opinion, the Tribunal could not have by-passed the first appellate authority and statutory requirement of pre-deposit, unless it was waived by an order in writing. 6. We are at pains to record our findings since we find that this is not an isolated case, where such order has been passed. This Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sit, it is open for the Tribunal to take into consideration the law on the subject and decide the validity of the order of directing or not directing the amount of predeposit. However, that would not ipso facto entitle the Tribunal to give a complete gobye to the well laid down procedures of law as also such requirement of predeposit and decide the matter on merit. We are also backed in our conclusion by another decision of the Apex Court rendered in case of CCE v. Smithkline Beecham Co. Health C. Ltd. 2003 (157) ELT 497, wherein it is observed, thus - 2. This appeal is filed against an order passed by the Customs, Excise Gold (Control) Appellate Tribunal dated 19th December 2002. The Tribunal was hearing an appeal against an order dated 23rd April 2002 passed by the Commissioner of Central Excise (Appeals). By that order, the Commissioner (Appeals) had merely dismissed the appeal because predeposit was not made. The Commissioner (Appeals) had not gone into the merits. Therefore, the only question before the Tribunal was whether predeposit was required or not. The Tribunal has chosen to go into the merits and decided the appeal on merits also. This should not hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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