TMI Blog2022 (4) TMI 1202X X X X Extracts X X X X X X X X Extracts X X X X ..... and, while going through the order dated 22.11.2021 passed by the Tribunal, the only reason assigned by the Tribunal is that the hearing of the matter has been prolonged from the year 2019 on the aspect of pre-deposit and stay and the first appeal being summarily dismissed without going into the merits of the case. Thus, the Tribunal deemed it fit to direct the appellant to pay the amount of ₹ 20,00,000/- towards the pre-deposit. This Court has time and again in identical cases has held that Tribunal is obliged to consider a prima facie case, which the appellant may be in position to highlight. It a strong prima facie case is made out, then in such circumstances, there should not be any difficulty in entertaining the appeal even without insisting for payment of tax penalty or even smaller amount - the Tribunal committed serious error of law by not taking note of the prima facie case of the writ applicant while examining the aspect of payment of pre-deposit. Therefore, in the facts and circumstances of the case, the order passed by the Tribunal dated 22.11.2021 is hereby quashed and set aside. Application allowed. - R/SPECIAL CIVIL APPLICATION NO. 1027 OF 2022 - - - D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments submitted by the appellant, it appears that this matter is prolonged from 2019 for decision of predeposit and stay against recovery. Ld. Advocate has relied upon the copy of master agreement. Considering the facts of the case and master agreement copy submitted by the appellant, the submission of Ld. Advocate is not acceptable. Since the first appeal is summarily dismissed without gone into the merits of the case, therefore, this Tribunal cannot decided the appeal on merits except to decide the amount of pre-deposit in light of the decision of Hon. High Court of Gujarat in the case of M/s. Tudor India Ltd. A. Anilkumar, therefore, at this juncture appellant is directed to pay ₹ 20,00,000/- towards pre-deposit within one month. On payment of aforementioned amount the stay against recovery shall come into operation. (6) The Registry is directed to place this matter for compliance of order and production of pre-deposit challan on 22/12/2021. 2.1. It appears from the record that the writ applicant having failed to deposit the aforesaid requisite amount towards pre-deposit, the Tribunal vide order dated 22.11.2021 summarily rejected the second appeal on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 2,91,41,274/-. In support of his prima facie case, Mr. Sheth has further relied upon the Judgment of this Court in Tax Appeal No. 229 of 2016, in the case of Jagdish distributors Pvt. Ltd. To contend that additions could have been made only to the extent of turnover determined on the basis of loose slips and further adhoc addition were not legally permissible. Thus, it was submitted that the First Appellate Authority as well as the Tribunal have however ignored aforesaid aspect and has instead insisted for pre-deposit of huge amount of ₹ 20,00,000. 6. The writ applicant had drawn aforesaid facts to the notice of the Deputy Commissioner of State Tax, Appeal 1, Ahmedabad, thereby challenging the aforesaid order of assessment under Section 73 of the Gujarat Value Added Tax Act. However, the Deputy Commissioner of State Tax, summarily rejected the appeal without considering the aforesaid facts only on the ground that no explanation has been tendered by the writ applicant thereby insisting for payment of pre-deposit amount in terms of Section 73 of the Act. The writ applicant has further submitted that so far as the issue with regard to levy of tax based on loose papers are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reposed discretion upon the appellate authority to entertain an appeal without payment of tax with penalty or in appropriate case on proof of the payment of a smaller sum as the appellate authority may consider reasonable or in an appropriate case on furnishing security by the appellant for such an amount which the appellate authority may direct. Obviously, at the stage of deciding the issue of admitting an appeal based on the payment of pre-deposit amount, the Tribunal is expected to venture into the merits of the case, wherein considering prima facie case which may very from case to case, the appellate authority may entertain the appeal accordingly. From the language of the statute, one can carved out in a given situation, the appellate authority may admit the appeal even without insisting for payment of tax with penalty or even a smaller sum or may not even insisting for furnishing of security. 10. In the case on hand, while going through the order dated 22.11.2021 passed by the Tribunal, the only reason assigned by the Tribunal as recorded in paragraph 5 of the said order is that the hearing of the matter has been prolonged from the year 2019 on the aspect of pre-deposit an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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