2014 (8) TMI 256

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.... 23rd January 2014, in which the Tribunal passed the following order: "This Second appeal No. 244 of 2013 is partly allowed. The disallowance of tax credit is hereby confirmed and accordingly the levy of tax and interest is also hereby confirmed. The penalty of Rs. 78,91,013 shall be removed if the appellant pays up the amount of Rs. 54,10,804 within the time specified by this Tribunal. If the appellant fails to do so, the assessing authority, to whom the matter is sent back, shall start proceedings for levying the penalty in accordance with law after giving an opportunity to the appellant of being heard. There is no order as to costs. Pronounced in the open court on this the 23rd day of January, 2014." 3. Against the tax demand confirm....

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....ppelable by way of first appeal before the Appellate Commissioner. Section 73(4) of the Gujarat Value Added Tax Act, 2003, requires that no appeal against the order of assessment shall ordinarily be entertained by the Appellate Commissioner, unless such appeal is accompanied by proof of payment of tax in respect of which the appeal has been preferred. Proviso to section 73(4), however, provides that the 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, interest, if any or as the case may be, of the penalty, or (b) on proof of payment of such small sum as it may consider necessary or (c) on the appellant furnishing in the prescribed manner secu....

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.... If the Tribunal was of the opinion that the condition imposed by the Appellate Commissioner was too onerous to be fulfilled by the appellant and the facts of the case warranted interference, the Tribunal could as well have done it. In such a scenario, the Tribunal ought to have placed appeal back to the Appellate Commissioner, on such condition that the Tribunal thought fit to impose on the appellant. In the present case, without expressing any opinion on the Appellate Commissioner imposing the condition of part predeposit on the appellant, the Tribunal accepted the appellant's Second Appeal as if there was no intermediary stage of the appeal before the Appellate Commissioner or any requirement of predeposit under section 73(4) of the ....