TMI Blog2015 (3) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... d circumstances and more particularly in view of the aforesaid decision of this Court, we find that such an approach on the part of the Tribunal for not remanding the matter to the First Appellate Authority for examination on merits and proceeding to decide the merits of the Appeal, is exfacie erroneous. However, as the condition of predeposit has been complied with in the Appeal before the Tribunal, we find that instead of sending the matter to the Tribunal it would be just and proper to send back the matter to the First Appellate Authority for examination of the merits of the Appeal. - Matter remanded back - Decided in favour of appellant. - Tax Appeal No. 124 of 2015 - - - Dated:- 25-2-2015 - Jayant Patel And S. H. Vora,JJ. For the Appellants : Mr Tushar P Hemani, Adv. Mr Vaibhavi K Parikh, Adv. For the Respondent : Mr Dave Asstt Govt Pleader JUDGMENT (Per : Honourable Mr. Justice Jayant Patel) 1. Admit. 2. Mr. Dave, learned Asstt. Government Pleader waives notice for the respondent. The Appeal is finally heard. 3. The present Appeal has been preferred by the assessee mainly on the following questions of law: (1) Whether, in the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of the Assessing Officer, appeal came to be preferred by the Assessee before the Deputy Commissioner of Commercial Tax and the prayer of the Assessee for predeposit of 10% of the amount was not accepted and the appeal was dismissed. Against the said order, the matter was carried before the Tribunal. The Tribunal, instead of considering the aspect of pre-deposit, touched the merits of the appeal and rendered the decision, which is impugned in the present appeal. 7. The learned Counsel appearing for both the sides are on agreement on the point that both the present appeals are covered by the decision of this Court dated 11.12.2014 in Tax Appeal No.1317 of 2014, wherein this Court has ruled that in a matter where the appeal is preferred before the appellate Authority, wherein the condition of predeposit was not complied with, it is obligatory for the Tribunal to decide the aspect of predeposit and thereafter if such condition is complied with, the matter may be remanded to the First Appellate Authority, but the Tribunal without considering the said aspect should not consider the merits of the appeal for liability of tax, penalty, interest, etc. 8. At this stage, we may refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsider 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 reasons recorded in writing relaxed the requirement of full predeposit. In the present case, the Appellate Commissioner exercised such powers and required the appellant to deposit 25% of the amount confirmed by the adjudicating authority. When the appellant failed to fulfill such requirement, his appeal came to be dismissed. It was against this order that the appellant had preferred appeal before the Tribunal. The scope of the appeal before the Tribunal, therefore, had to be limited to the question of finding out whether the order passed by the Commissioner insisting on the appellant depositing certain amount by way of predeposit was valid or not and resultantly, his decision to reject such an appeal for noncompliance with such requirement was correct or not. 5. Unless and until the answers were given to such questions, the appellants first appeal before the appellate authority was simply not main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. As we have noticed in number of matters, this unacceptable trend of deciding the appeals on merit, even when the first appellate authority has rejected the case of assessee on the ground of predeposit, instead of considering the request of deposit of predeposit, such determination of the entire appeal by the Tribunal at the such juncture, in our opinion, is not a desirable approach. We may not choose to interfere in all such cases where the Tribunal has straightway chosen to decide the matter on merit instead of determining issue of predeposit which was at large before it. However, so as to ensure that a dent is made in such practice followed consistently that we have chosen to remand this matter. Once, when assessee chooses not to comply with the requirement of making predeposit or contest the matter on the ground of predeposit and either side approaches the second appellate authority, there does not arise any question of circumventing the very stage and exercise the powers of first appellate authority. We say so as the Statute provides that even on adjudication of the issue on merit by the first appellate authority, either side is entitled to challenge such reasonings befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent year was before the Tribunal, and in such circumstances, with the consent of the parties it chose to conclude on merit. 8.3 In view of the discussion held hereinabove, we therefore are of the opinion that this appeal deserves to be remanded back to the Tribunal so as to emphasis the requirement of not permitting any such short circuiting of the process at any stage. We have chosen not to enter the arena of merit of the case at all as is apparent from the discussion held hereinabove. 8. The learned Assistant Government Pleader Mr.Jaimin Gandhi, however, relied on the judgment dated September 12, 2013 rendered by the Division Bench of this Court in Tax Appeal No.67 of 2013 and connected appeals, in which when the Tribunal had under similar circumstances entertained the appeal of the assessee on merits, but dismissed it, the Court held that the appellant cannot raise the ground of impropriety on the part of the Tribunal merely because he has lost in appeal on merits. In the present case, however, we have suo motu taken such an objection against the decision of the Tribunal and in fact, the appellant had partially succeeded before the Tribunal. 9. In the circumstances, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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