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2016 (4) TMI 318 - GUJARAT HIGH COURT

2016 (4) TMI 318 - GUJARAT HIGH COURT - TMI - Waiver of payment of tax - Imposed for the purpose of entertaining the appeal - Held that:- as per the provision of sub-section (4) of Section 73 of the GVAT Act which provides that no appeal against an order of assessment shall ordinarily be entertained by an appellate authority, unless such appeal is accompanied by satisfactory proof of payment of the tax in respect of which an appeal has been preferred; provided that an appellate authority may, if .....

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to sub-section (4) of section 73 of the GVAT Act seeking waiver of payment of tax and penalty as contemplated under clause (a) of sub-section (4) of section 73 of the GVAT Act. The first appellate authority was, therefore, duty bound to consider the application and give its reasons, either for allowing or rejecting the same. However, in the facts of the present case, the first appellate authority has completely disregarded the application made by the petitioner seeking waiver of payment of tax, .....

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proviso to sub-section (4) of section 73 of the GVAT Act. Under the circumstances, the first appellate authority was not justified in dismissing the appeal on the ground of non-production of proof of payment of tax. The impugned order, therefore, cannot be sustained. - Waiver granted - SPECIAL CIVIL APPLICATION NO. 1667 of 2016 - Dated:- 17-3-2016 - MS. HARSHA DEVANI AND MR. G.R.UDHWANI, JJ. FOR THE PETITIONER : MR SN SOPARKAR, SR. ADVOCATE with MR AMAR N BHATT, ADVOCATE FOR THE RESPONDENT : MR .....

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petitioner against the order dated 23.03.2015 passed by the Deputy Collector of Commercial Tax, Corporate-2, Division-2, Ahmedabad (the first respondent herein) has been dismissed as well as the above order dated 23.03.2015 passed by the Deputy Commissioner of Commercial Tax (Annexure B to the petition). 3. By an assessment order dated 23.03.2015 in respect of assessment year 2010-11, the first respondent assessed the total liability of the petitioner for Value Added Tax for sale of Maggi Noodl .....

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the Commercial Tax Officer, Unit 22 on 11.05.2015 not to effect coercive recovery pursuant to the order dated 23.03.2015. The petitioner submitted an application dated 10.08.2015 to the Joint Commercial Tax Commissioner, Appeal -2 seeking total relief in the tax, interest and penalty charges as well as an application 08.09.2015 to the said Joint Commissioner of Commercial Tax requesting him to entertain the appeal of the petitioner without requiring the petitioner to make any payment of tax and .....

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itioner has filed the present petition. 4. Mr. S. N. Soparkar, Senior Advocate, learned counsel with Mr. Amar Bhatt, learned advocate for the petitioner invited the attention of the court to the judgement and order dated 07.05.2015 passed by this court in the case of Nestle India Limited v. Deputy Commissioner of Commercial Tax and another rendered in Special Civil Application No.15842 of 2012 and allied matters wherein, the court had set aside the orders passed by the first respondent holding t .....

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d from payment of sales tax. It was submitted that the attention of the first appellate authority was invited to the above order passed by this court and accordingly, in the ordersheet entry, it is clearly reflected that the same was brought to the notice of the first appellate authority. Referring to the impugned order, it was pointed out that though the first appellate authority has made reference to the judgment and order dated 07.05.2015 passed by this court, it has placed reliance upon the .....

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oner had not remained present in view of the fact that the issue being squarely covered by the decision of this court, the petitioner was entitled to a total waiver of payment of tax and penalty for the purpose of entertaining the appeal. It was submitted that the first appellate authority having passed the impugned order by disregarding the above referred decision of this court, the same is required to be quashed and set aside and that the appeal is required to be restored with a direction to t .....

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der passed by the first appellate authority, the petitioner has an efficacious alternative remedy by way of appeal before the Gujarat Value Added Tax Appellate Tribunal and hence, the present petition under Articles 226 and 227 of the Constitution of India may not be entertained. Reiterating the contents of the affidavit-in-reply filed on behalf of the respondents, it was submitted that on 18.05.2015, the petitioner s Tax Practitioner attended the proceedings before the first appellate authority .....

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he or his advocate remain present and hence, the matter, as a last chance, was adjourned to 30.11.2015 on which date also, the petitioner did not remain present and hence, the first appellate authority was left with no option but to dismiss the appeal not on merits, but on the ground of non-appearance and nonpayment of the amount of pre-deposit. It was submitted that having regard to the fact that the petitioner had not remained present before it, the first appellate authority was wholly justif .....

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f and is required to be relegated to avail of the alternative remedy before the Tribunal. 6. In rejoinder, Mr. Soparkar, learned counsel for the petitioner invited the attention of the court to the decision of this court in the case of Nestle India Limited v. Deputy Commissioner of Commercial Tax and another rendered in Special Civil Application No.15842 of 2012 and allied matters, to point out that the said writ petitions had been filed directly against the assessment orders made by the Deputy .....

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order dated 23.03.2015 passed by the Deputy Commissioner of Commercial Tax, the petitioner went in appeal under section 73 of the GVAT Act before first appellate authority. Before the first appellate authority, the petitioner moved application seeking waiver of payment of tax for the purpose of entertaining the appeal and placed reliance upon an interim order passed by this court in the case of Nestle India Limited v. Deputy Commissioner of Commercial Tax. Subsequently, during the pendency of th .....

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f the said decision was also annexed along with the application and it was, accordingly, prayed that complete waiver from payment of tax be granted for the purpose of entertaining the appeal. Subsequently, another application dated 08.09.2015 came to be made to the first appellate authority informing him that the petitioner had filed an appeal on a single point regarding taxability of Maggi Noodles , a product of Nestle India Limited and Glaxo Smithkline Consumer Healthcare Limited and that the .....

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uthority which clearly reflects that the same was brought to its notice. Despite the aforesaid judgement of this court being brought to the notice of the first appellate authority, it appears that further notices were issued to the petitioner by observing that in terms of the assessment order, ₹ 61,78,061/- was required to be paid and that no proof has been produced with regard to payment of such amount. Lastly, by the impugned order dated 30.11.2015, the first appellate authority has dism .....

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of the pre-deposit. Despite the fact that the decision of this court in the case of Nestle India Limited v. Deputy Commissioner of Commercial Tax and another (supra), which clearly decided the controversy involved in the case in favour of the petitioner was brought to its notice, the first appellate authority has ignored the application for waiver of pre-deposit made by the petitioner and has dismissed the appeal on the ground that the petitioner has neither remained present before the authority .....

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n writing, entertain an appeal against such order - (a) without payment of tax with penalty (if any) or, as the case may be, of the penalty, or (b) on proof of payment of such smaller sum as it may consider reasonable, or (c) on the appellant furnishing in the prescribed manner, security for such amount as the appellate authority may direct. 10. Thus, while the main part of sub-section (4) of section 73 of the GVAT Act provides that no appeal against an order of assessment shall ordinarily be en .....

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rity under the proviso to sub-section (4) of section 73 of the GVAT Act seeking waiver of payment of tax and penalty as contemplated under clause (a) of sub-section (4) of section 73 of the GVAT Act. The first appellate authority was, therefore, duty bound to consider the application and give its reasons, either for allowing or rejecting the same. However, in the facts of the present case, the first appellate authority has completely disregarded the application made by the petitioner seeking wai .....

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