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2016 (4) TMI 318

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..... ub-section (4) of section 73 of the GVAT Act. The first appellate authority was, therefore, duty bound to consider the application and give its reasons, either for allowing or rejecting the same. However, in the facts of the present case, the first appellate authority has completely disregarded the application made by the petitioner seeking waiver of payment of tax, and has dismissed the appeal on the ground of non-production of proof of payment of pre-deposit as contemplated in the main part of sub-section (4) of section 73 of the GVAT Act. Having regard to the decision of this court in the case of Nestle India Limited v. Deputy Commissioner of Commercial Tax [2015 (7) TMI 387 - GUJARAT HIGH COURT], the petitioner had made out a prima facie case for grant of total waiver of the payment of tax and penalty as contemplated under clause (a) of the proviso to sub-section (4) of section 73 of the GVAT Act. Under the circumstances, the first appellate authority was not justified in dismissing the appeal on the ground of non-production of proof of payment of tax. The impugned order, therefore, cannot be sustained. - Waiver granted - SPECIAL CIVIL APPLICATION NO. 1667 of 2016 - - - Da .....

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..... (hereinafter referred to as the first appellate authority ), however, summarily dismissed the appeal on the ground that the petitioner has failed to produce proof of payment pursuant to the assessment order and that in the last adjournment, the petitioner did not remain present. Being aggrieved, the petitioner has filed the present petition. 4. Mr. S. N. Soparkar, Senior Advocate, learned counsel with Mr. Amar Bhatt, learned advocate for the petitioner invited the attention of the court to the judgement and order dated 07.05.2015 passed by this court in the case of Nestle India Limited v. Deputy Commissioner of Commercial Tax and another rendered in Special Civil Application No.15842 of 2012 and allied matters wherein, the court had set aside the orders passed by the first respondent holding that the adjudicating authority/Assessing Officer cannot be permitted to ignore and/or cannot be permitted to pass a contrary order than the order passed by the higher forum, unless there are changed circumstances found in the subsequent assessment years. In the facts of the said case, the Tribunal by an order dated 09.09.1986 passed in Appeal No.11 of 1984, had held that Maggi Noodles woul .....

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..... ating the contents of the affidavit-in-reply filed on behalf of the respondents, it was submitted that on 18.05.2015, the petitioner s Tax Practitioner attended the proceedings before the first appellate authority for preliminary hearing and that the authority had instructed the petitioner to deposit the amount and that the petitioner was aware of the fact that its request for payment of waiver of pre-deposit had been rejected. It was submitted that since on the date when the matter was posted for hearing, the petitioner had not made any payment by way of pre-deposit, the matter was, thereafter, adjourned to 27.08.2015. On that date also, the petitioner neither submitted proof of any pre-deposit, nor did he or his advocate remain present and hence, the matter, as a last chance, was adjourned to 30.11.2015 on which date also, the petitioner did not remain present and hence, the first appellate authority was left with no option but to dismiss the appeal not on merits, but on the ground of non-appearance and nonpayment of the amount of pre-deposit. It was submitted that having regard to the fact that the petitioner had not remained present before it, the first appellate authority was .....

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..... Nestle India Limited, holding that the decision of the Sales Tax Tribunal is binding upon the lower authorities. A copy of the said decision was also annexed along with the application and it was, accordingly, prayed that complete waiver from payment of tax be granted for the purpose of entertaining the appeal. Subsequently, another application dated 08.09.2015 came to be made to the first appellate authority informing him that the petitioner had filed an appeal on a single point regarding taxability of Maggi Noodles , a product of Nestle India Limited and Glaxo Smithkline Consumer Healthcare Limited and that the said product was tax free and was not liable to VAT. It was further informed that the High Court in the case of Nestle India Limited has decided in favour of the dealer and according to the judgement, Maggi Noodles is not liable to tax and it is tax free. The request to admit the appeal without paying any payment of tax at the time of preliminary hearing was again reiterated. The fact regarding receipt of the application dated 10.08.2015 is borne out from the order-sheet of the first appellate authority which clearly reflects that the same was brought to its notice. Desp .....

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..... ssessment shall ordinarily be entertained by an appellate authority, unless such appeal is accompanied by satisfactory proof of payment of the tax in respect of which an appeal has been preferred, the proviso thereto vests in the appellate authority the discretion to entertain the appeal without payment of tax; or upon payment of such smaller sum as it considers reasonable; or upon the appellant furnishing security, as it may deem fit. In the facts of the present case, the petitioner invoked jurisdiction of the appellate authority under the proviso to sub-section (4) of section 73 of the GVAT Act seeking waiver of payment of tax and penalty as contemplated under clause (a) of sub-section (4) of section 73 of the GVAT Act. The first appellate authority was, therefore, duty bound to consider the application and give its reasons, either for allowing or rejecting the same. However, in the facts of the present case, the first appellate authority has completely disregarded the application made by the petitioner seeking waiver of payment of tax, and has dismissed the appeal on the ground of non-production of proof of payment of pre-deposit as contemplated in the main part of sub-section ( .....

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