Tribunal must decide VAT second appeal on merits; dismissal for absence of counsel or non-prosecution is impermissible.

Section 26(5)(a) of the Maharashtra Value Added Tax Act, 2002 was treated as requiring the Tribunal to determine a second appeal on merits, with power to confirm, reduce, enhance or annul the assessment. A procedural rule could not override that statutory mandate, so dismissal of the appeal for absence of counsel or for non-prosecution was impermissible. The refusal to restore the second appeal was therefore unsustainable, and the matter had to be heard and decided on merits.

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Issues: Whether the Tribunal could dismiss a VAT second appeal for absence of counsel or for non-prosecution, or whether it was bound to decide the appeal on merits under Section 26(5)(a) of the Maharashtra Value Added Tax Act, 2002.

Analysis: The statutory scheme under Section 26(5)(a) empowered the appellate authority in an appeal against assessment to confirm, reduce, enhance or annul the assessment, and the Tribunal was required to act in accordance with that mandate. A rule of procedure could not override the substantive provision of the Act. In that view, dismissal of the appeal merely because the appellant's advocate or consultant was absent, or for non-prosecution, was impermissible. The appropriate course was to decide the second appeal on merits.

Conclusion: The dismissal and the refusal to restore the second appeal were unsustainable and were set aside; the appeal was directed to be heard and decided on merits.

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