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TMI Blog2024 (10) TMI 1175X X X X Extracts X X X X X X X X Extracts X X X X ..... s and in the circumstances of the case the Gujarat Value Added Tax Tribunal is justified in not granting waiver of pre-deposit to the appellant without assigning any reasons for such decision? (b) Whether on the facts and in the circumstances of the case the Gujarat Value Added Tax Tribunal is justified in not granting waiver of pre-deposit to the appellant even though the entire demand is based upon Section 61 of the VAT Act which is wholly irrelevant to the issue of determination of "sale price"? (c) Whether on the facts and in the circumstances of the case the Gujarat Value Added Tax Tribunal is justified in not granting waiver of pre-deposit to the appellant even though adjustment of tax liability is clearly permissible under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal, by common order dated 18.11.2022, dismissed the appeals for the entire period from 2011-12 to 2016-17 oblivious of the fact that the Tribunal did not pass an order for pre-deposit for the assessment period 2010-11 to 2012-13. 5. Learned advocate Mr. Sheth submitted that admittedly, the Tribunal passed the order at the time of admission for the period from 2010-11 to 2012-13 giving no pre-deposit direction and therefore, Second Appeal No. 373 to 379/2020 for the said period could not have been dismissed for non-compliance of the direction of pre-deposit passed by the Tribunal. 6. On perusal of the order dated 16.06.2022 passed by the Tribunal it is apparent that the Tribunal in para 5 of the said order has categorically obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,40,36,979/- 28,00,000/- 2016-17 2,27,54,672/- 50,00,000/- 8. This Court in case of Kavya Marketing (supra) has held as under: "8. Section 73 (4) of the VAT Act, 2003 reads as under: "73 (4). 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 it thinks fit, for reasons to be recorded in 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 if may consider reasonable, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sisting for payment of tax with penalty or even a smaller sum or may not even insisting for furnishing of security. 10. In the case on hand, while going through the order dated 22.11.2021 passed by the Tribunal, the only reason assigned by the Tribunal as recorded in paragraph 5 of the said order is that the hearing of the matter has been prolonged from the year 2019 on the aspect of pre-deposit and stay and the first appeal being summarily dismissed without going into the merits of the case. Thus, the Tribunal deemed it fit to direct the appellant to pay the amount of Rs. 20,00,000/- towards the pre-deposit. 11. We find that such an approach of the Tribunal of not addressing prima facie case of the writ applicant at the pre-deposit sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, we are of the view that in the facts and circumstances of the case, the order passed by the Tribunal dated 22.11.2021 is hereby quashed and set aside. We further direct the Tribunal to hear the matter on merits so far as the issue of grant of stay pending appeal is concerned, taking into consideration the Circulars issued by the CBDT bearing No.1914, dated 02.02.1993 as modified by instructions dated 29.02.2016, which permits 15% of the disputed demand to be deposited for stay by way of a general condition. Thus, even the instructions issued by the CBDT itself suggests an inbuilt-mechanism to either decrease or increase the percentage of disputed tax demand to be deposited by an assessee to enjoy stay pending the appeal. Indispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscount in the tax invoice or bill of sale to qualify it for deduction has to be construed in relation to the transaction resulting in final sale/purchase price and not limited to the original sale sans the trade discount. It was submitted that the appellant has issued the retail tax invoice and also issued the credit note however, the Assessing Officer rejected the trade discount which is part of the retail invoice only on the ground that the appellant did not issue tax invoice. 11. It was therefore submitted that there is prima facie case in favour of the appellant which is not taken into consideration by the Tribunal. 12. On the other hand, learned AGP Ms. Shah for the respondent could not controvert the submissions made by learned adv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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