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2017 (4) TMI 1000 - HC - VAT and Sales TaxTax paid versus Tax Dispute - Payment versus Pre-deposit - WB VAT - Scope of the term used and defined - second proviso to Section 84(1) - appellant contended that the appeal is required to be made with a payment of tax and not a deposit or a pre-deposit. - Held that - An assessee applying for refund and such claim for refund having been reduced an assessee preferring an appeal against such reduction is not required to deposit 15% of the tax in dispute in terms of the second proviso to Section 84(1) of the Act of 2003. This recording cannot be construed to mean that when there is a demand for tax in the order of assessment the assessee will be permitted not to deposit the requisite 15% on the ground that it had claimed refund and the order of assessment is one of demand for tax. In the present case if an assessee complies with the requirements under the second proviso of Section 84(1) of the Act of 2003 then the revenue would not be proceeding to realize the balance of the sum due. Therefore effectively by depositing 15% of the tax in dispute an assessee will receive an order of stay of recovery proceeding. This cannot be said to be hardship let alone undue hardship. Requirement of a pre-deposit is not a hardship. They however contend that so far as the appeal is concerned they should be guided by the provisions applicable prior to the amendments introduced to the second proviso on Section 84(1). The petitioners seek to have by such contention best of both worlds. They seek to take the advantage of the amendments being introduced to the various provisions of the Act of 2003 permitting a more transparent and a beneficial method of assessment so far as an assessment is concerned and on the other hand not accept the appeal provision which is founded upon the amendments introduced to the other provisions of the Act of 2003 and the Rules framed thereunder. The right of appeal altered with effect from April1 2015 is in consonance with the amendments introduced to the assessment procedure. The petitioners have accepted the assessment procedure. They are therefore bound to accept the appeal provisions also. The right to prefer the appeal is sought to be made conditional. Conditions imposed have not been found to be unreasonable arbitrary or violative of any provisions of the Constitution. The provisions for appeal therefore cannot be said to have violated the right guaranteed under Article 19(1)(g) of the Constitution of India.
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