TMI Blog2014 (8) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... by way of pre-deposit. Scope of the appeal before the Tribunal was whether such condition imposed by the Commissioner was correct in law or not. If the Tribunal was of the opinion that the condition was validly imposed, it could have dismissed the appeals of the appellant. If on the other hand, the Tribunal, looking to the facts and circumstances of the case, was of the opinion that any lesser amount or no payment by way of pre-deposit was necessary, it could have provided so. If the appellant had fulfilled such modified condition of pre-deposit, the appellant's appeal would be ripe for hearing before the Commissioner. Under no circumstances, the Tribunal could have bypassed such first appellate authority and directly heard the appeals on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ggested by the Commissioner.- Matter remanded back to Commissioner - Decided in favour of assessee. - Tax Appeal Nos. 1132 & 1133 of 2013 - - - Dated:- 25-4-2014 - AKIL KURESHI AND MS. SONIA GOKANI, JJ. For the Appellant : Ms. Megha Jani. For the Respondent : Jaimin Gandhi. ORDER:- PER : Akil Kureshi, J. Heard learned counsel for the parties for final disposal of the appeals. 2. Since facts are common, we may record those arising in Tax Appeal No.1133 of 2013. 3. Appellant was a registered dealer under the VAT Act and Central Sales Tax Act. Certain purchases made by the appellant came under the scanner of the VAT authorities. A show cause notice was issued alleging that such purchases were made from Taxraj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anded back to the Assessing Officer to examine the issue afresh after giving an opportunity of being heard to the appellant. Operative part of the order of the Tribunal reads as under: These second appeals No.46 and 47 of 2012 are partly allowed. The disallowance of Input tax credit is hereby confirmed and accordingly the levy of tax as well as the interest is also confirmed. So far as the levy of penalty is concerned, the matter is remanded back to the assessing officer to examine the whole issue and pass fresh order after giving an opportunity of being heard to the appellant. It is this order which the appellant has challenged by filing two appeals. 5. We may recall that the order under challenge before the Tribunal was on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onable or the appellant furnishing security for such amount as the appellate authority may direct. In terms of section 73(4) of the VAT Act, thus unless and until either the appellant pays the entire amount confirmed in the order appealed against or the appellate authority for the reasons to be recorded in writing relaxes such requirement in the manner noted above, it would not be possible for the appellate authority to entertain such appeal. 6. The Tribunal, therefore, simply had to decide whether the condition imposed by the Commissioner was proper and if not what further relaxation could be granted to the appellant. In the process, the Tribunal could not have examined the order of the Assessing Officer on merits as the first appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Commissioner, unless such appeal is accompanied by proof of payment of tax in respect of which the appeal has been preferred. Proviso to section 73(4), however, provides that the appellate authority may, if it thinks fit, for reasons to be recorded in writing, entertain an appeal against such order (a) without payment of tax, interest, if any or as the case may be, of the penalty, or (b) on proof of payment of such small sum as it may consider necessary or (c) on the appellant furnishing in the prescribed manner security or such as the appellate authority may direct. 4. In view of section 73(4) of the Act, therefore, such appeal could not have been entertained unless in terms of proviso, the appellate authority for reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal could as well have done it. In such a scenario, the Tribunal ought to have placed appeal back to the Appellate Commissioner, on such condition that the Tribunal thought fit to impose on the appellant. In the present case, without expressing any opinion on the Appellate Commissioner imposing the condition of part predeposit 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 predeposit 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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