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2016 (4) TMI 274 - GUJARAT HIGH COURT

2016 (4) TMI 274 - GUJARAT HIGH COURT - TMI - Waiver of pre-deposit - Total liability of the petitioner under the assessment order exceeds ₹ 4,00,00,000/- against which Tribunal, by the order dated 18.9.2015, had directed the petitioner to deposit an amount of ₹ 10,00,000/- under the GVAT Act and ₹ 1,00,000/- under the CST Act by way of pre-deposit as a condition precedent for entertaining the appeals -

Held that:- Sub-section (4) of section 73 of the GVAT Act provi .....

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l the discretion to entertain an appeal, if it thinks fit, for reasons to be recorded in writing, inter alia, without payment of tax with penalty (if any) or, as the case may be, of penalty. Thus, no dealer can demand as a matter of right that his appeal should be heard without payment of tax or penalty and it is for such dealer to satisfy the Tribunal that a case has been made out for total exemption from payment of tax with penalty. However, the Tribunal, while considering an application for w .....

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ot granted - SPECIAL CIVIL APPLICATION NO. 627 of 2016 - Dated:- 31-3-2016 - MS. HARSHA DEVANI AND MR. G.R.UDHWANI, JJ. FOR THE PETITIONER : MR AR GUPTA, ADVOCATE, ADITYA A GUPTA, ADVOCATE FOR THE RESPONDENT : ADVANCE COPY SERVED TO GP/PP ORAL ORDER (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. This petition under Articles 226 and 227 of the Constitution of India is directed against the order dated 18.9.2015 passed by the Gujarat Value Added Tax Tribunal, Ahmedabad (hereinafter referred to as t .....

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. 2. It is the case of the petitioner as averred in the petition that it is engaged in the business of dealing with tax free goods covered by Schedule I of the GVAT Act. The Assistant Commissioner of Commercial Tax passed an ex-parte assessment order dated 29.3.2014 with respect to the assessment period 1.4.2009 to 31.3.2010 raising a total demand of ₹ 3,57,12,395/-, including interest and penalty under the provisions of the GVAT Act and also raised a demand of ₹ 58,20,230/-, includi .....

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the petitioner failed to make such pre-deposit before the stipulated date, viz., 20.1.2015, by an order dated 12.3.2015, the first appellate authority dismissed the appeal. Being aggrieved, the petitioner preferred appeals before the Tribunal being Second Appeals No.424 and 425 of 2015, together with stay applications. 2.1 By an order dated 8.7.2015, the Tribunal directed the petitioner to produce all necessary evidences in respect of its contention regarding tax free turnover under the GVAT Act .....

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ector, Mr. Sanjay Patel, and could not be produced before the lower authorities as the Bank of India has attached the premises and no one was permitted to enter the said premises. It is the case of the petitioner that it had clearly stated the reasons for not producing the documents in the affidavit, but the Tribunal, without considering the true purport of the affidavit, vide impugned order dated 18.9.2015, held that there was no ground to interfere with the order of pre-deposit of ₹ 10,0 .....

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r, by the impugned order dated 19.10.2015 dismissed the appeal on account of noncompliance of the order of pre-deposit. Being aggrieved, the petitioner has filed the present petition. 3. Mr. Aditya Gupta, learned advocate for the petitioner assailed the impugned order by submitting that insofar as the order dated 18.9.2015 is concerned, the same suffers from lack of application of mind on the part of the Tribunal, inasmuch as, though the Tribunal has referred to the affidavit filed by the petiti .....

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ls in tax free goods and hence, is not liable to pay any tax under the GVAT Act or CST Act. Therefore, the Tribunal is not justified in upholding the order passed by the first appellate authority and directing the petitioner to deposit ₹ 10,00,000/- under the GVAT Act. It was submitted that the petitioner being in dire financial constraints is not in a position to deposit the amount as directed by the Tribunal, and that the matter is required to be restored to the Tribunal for reconsiderin .....

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he petitioner to deposit an amount of ₹ 10,00,000/- under the GVAT Act and ₹ 1,00,000/- under the CST Act by way of pre-deposit as a condition precedent for entertaining the appeals. By the impugned order, the Tribunal had slightly modified the order of the first appellate authority by reducing the amount payable under the CST Act to ₹ 1,00,000/- instead of ₹ 2,00,000/-. The record of the case reveals that the tax liability of the petitioner has been assessed at ₹ 3 .....

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ellate authority, unless such appeal is accompanied by satisfactory proof of payment of tax in respect of which an appeal has been preferred. Thus, ordinarily an appeal cannot be entertained unless the tax assessed under the assessment order is paid and proof thereof is submitted along with the appeal. Sub-section (4) of section 73 of the GVAT Act, however, carves out an exception by vesting in the Tribunal the discretion to entertain an appeal, if it thinks fit, for reasons to be recorded in wr .....

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