9911796707
TMI Blog2015 (1) TMI 765X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that the order of pre-deposit passed by him has not been complied with. The petitioner alternatively prays that the Deputy Commissioner of Commercial Tax be directed to hear the appeal on merits without requiring the petitioner to make any further deposit towards the tax dues. 3. The petitioner herein was engaged in the business of manufacturing and selling water treatment plant, water purifiers, ferrous and non-ferrous metal, iron and steel etc. and is registered as a dealer under the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as "the GVAT Act") as well as the Central Sales Tax Act, 1956 (hereinafter referred to as "the CST Act"). 4. On 24th June, 2011, the Enforcement Officers visited the business premises of the petitioner and certain books of accounts were seized. Subsequently, notices for assessment in Form 302 and 6B for the assessment year 2009-10 came to be issued under the VAT Act and CST Act respectively, by the Assistant Commissioner of Commercial Tax (3) (Enforcement) Division I, Ahmedabad. It is the case of the petitioner that pursuant to the said notices, the petitioner remained present and submitted that the petitioner had made genuine purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptember, 2014, the Tribunal, after hearing the respective parties with their learned representatives at length, observed that the total demand raised against the petitioner under both the Act is Rs. 35,97,30,683/- and the entire demand is on account of disallowance of input tax credit. That the petitioner is, therefore, required to make payment of tax as well as interest which comes to Rs. 12 crores, however, the Deputy Commissioner has directed to make payment of Rs. 7,13,27,525/- under the VAT Act and Rs. 10,00,000/- under the CST Act by way of pre-deposit and that it could not exceed this and direct the petitioner to make more payment than what was directed by the Deputy Commissioner. The Tribunal further observed that since the petitioner had already given its consent and permitted the department to sell the stock attached by it, it is open for the department to put the stock attached by it on sale and adjust the sale proceeds of the said stock against the outstanding demand. The Tribunal, ultimately directed the petitioner to make payment of the amount as directed by the Deputy Commissioner by way of pre-deposit within one month from the date of the order and that upon payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amily members of the Directors valued at over Rs. 48 crores had already been attached by the department. It was submitted that the Tribunal failed to consider that any deterioration in the value of the attached properties was not on account of any fault on the part of the petitioner as the same had been under the attachment of the department since 2011. It was submitted that in the light of the provisions of section 73 of the VAT Act and more particularly clause (c) of the proviso thereto, the interest of the department was sufficiently secured, inasmuch as, properties worth more than Rs. 50 crores had been attached by the department in the year 2011. Under the circumstances, the Tribunal ought to have considered the plea of the petitioner and ought to have restored the appeals before the appellate authority without insisting upon payment of pre-deposit. 8. Vehemently opposing the petition, Mr. Jaimin Gandhi, learned Assistant Government Pleader, submitted that the petitioner has failed to make out any of the circumstances which are necessary for the purpose of waiver of pre-deposit or for grant of stay against the order of assessment, inasmuch as, the petitioner has neither made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assets of the petitioner including goods, factory, land, motor cars, lands of Directors, etc. came to be attached. In terms of the averments made in the affidavit-in-reply filed by the respondent, it appears that at the time of attachment, the value of the properties was around Rs. 53 crores, out of which the stock was valued at Rs. 48 crores. However, now according to the respondent, the value of the stock is estimated at Rs. 2.15 crores only. The appellate authority/Deputy Commissioner has directed the petitioner to pre-deposit Rs. 7,13,27,525/- for hearing the appeals on merits. The Tribunal, while upholding the order of the Deputy Commissioner of directing pre-deposit of the above referred amount, has adopted a novel approach. Instead of deciding the matter on merits by examining as to whether the petitioner had made out a prima facie case or as to whether any of the circumstances envisaged under the proviso to section 73 of the Act are attracted, the Tribunal proceeded to ask the Department to dispose of the stock attached by it with a view to recover the amount towards the pre-deposit. By the impugned order, the Tribunal has directed the petitioner to pre-deposit the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part-payment for admission of appeals. However, the petitioner was not in a financial position to pay such amount, more so, in view of the fact that its assets, as noted above, have been attached by the respondent, and as such could not make the pre-deposit as directed by the appellate authority. The appellate authority, therefore, summarily dismissed the appeals on the ground of non-payment of the amount of pre-deposit. The Tribunal, in the appeals preferred by the petitioner against the order of dismissal of appeals, has upheld the order passed by the appellate authority directing pre-deposit of the aforesaid amount. However, the Tribunal has called upon the petitioner to deposit such amount before it or, in the alternative, permit the respondent to recover such amount from the properties attached by it. In the opinion of this court, once the Tribunal did not deem it fit to interfere with the order passed by the appellate authority to the extent of the amount of pre-deposit directed by it, all that was required to be done was to confirm the said order and permit the petitioner to pay such amount as a condition precedent for restoration of its appeals. The Tribunal was not requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to section 73 of the Act which provides that the appellate authority may entertain an appeal on the appellant furnishing security of such amount as the appellate authority may direct, this court is of the view that the appeals filed by the petitioner before the appellate authority are required to be heard on merits without payment of any amount by way of pre-deposit, in view of the fact that sufficient security is available with the department by way of attachment of the properties of the petitioner. 14. In the light of the aforesaid discussion, the court is of the view that the impugned order passed by the Tribunal, which fails to consider any of the relevant factors that should be taken into consideration while considering the question of directing payment of pre-deposit or granting stay of the assessment order, cannot be sustained. 15. However, in view of the fact that the Tribunal has agreed with the appellate authority insofar as payment of predeposit is concerned, restoring the matter to the Tribunal will not serve any fruitful purpose, inasmuch as, the appellate authority/Deputy Commissioner has also dismissed the appeals on the ground of non-payment of pre-deposit. Under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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