TaxTMI 
TaxTMI 
TaxTMI 
2015 (1) TMI 638
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....eal for failure to deposit the predeposit?" 2. In this appeal, the State Government has challenged the judgment of the Gujarat Value Added Tax Tribunal ('the Tribunal' for short) dated 22.08.2013. The Tribunal held that the liability of additional tax could be adjusted against unused exemption under Section 49 of the Gujarat Sales Tax Act. Consequently, the Tribunal also deleted the interest and penalty. 3. We notice that the appeal before the Tribunal was directed against the order of the first appellate authority imposing certain condition of predeposit before entertaining the appeal on merits. The Tribunal, instead of deciding the correctness of such an order, proceeded to decide the appeal on merits and allowed it as well. We ....
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....case, the Appellate Commissioner exercised such powers and required the appellant to deposit 25% of the amount confirmed by the adjudicating authority. When the appellant failed to fulfill such requirement, his appeal came to be dismissed. It was against this order that the appellant had preferred appeal before the Tribunal. The scope of the appeal before the Tribunal, therefore, had to be limited to the question of finding out whether the order passed by the Commissioner insisting on the appellant depositing certain amount by way of predeposit was valid or not and resultantly, his decision to reject such an appeal for noncompliance with such requirement was correct or not. 5. Unless and until the answers wer....
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....by the Assessing Officer. There was no prayer for setting aside the appellate order of imposing condition and subsequently, dismissing his appeal when he failed to fulfill such condition. Even if it were so, the Tribunal could have either permitted the appellant to suitably amend the prayer or if the appellant was not willing to do so, dismiss his appeal as not maintainable. In our opinion, the Tribunal could not have bypassed the first appellate authority and statutory requirement of predeposit, unless it was waived by an order in writing. 6. We are at pains to record our findings since we find that this is not an isolated case, where such order has been passed. This Court has come across such orders of the Tribunal on ....
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.... challenge such reasonings before the second appellate authority. Not only the parties and the second appellate authority would be deprived of the reasonings of the first appellate authority but chance of either sides of availing the opportunity of appeal on merit also gets marred by this process. Even if it is felt by the Tribunal that the issue is covered by the decision of the higher forum, it can always direct the parties to agitate these aspects before the concerned authority [first appellate authority here]. 8. We also need to take note of the fact that the intent of incorporating the provision of predeposit before proceeding with the appeal is well carved out by the decision of the Apex Cou....
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....sen to go into the merits and decided the appeal on merits also. This should not have been done."" 8.2 It is not the case of either side that an identical question of law was pending before the Tribunal in some other appeals concerning the very assessee, or identical question of law in respect of very assessee for different assessment year was before the Tribunal, and in such circumstances, with the consent of the parties it chose to conclude on merit. 8.3 In view of the discussion held hereinabove, we therefore are of the opinion that this appeal deserves to be remanded back to the Tribunal so as to emphasis the requirement of not permitting any such sh....
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....by the Tribunal questioning the merits of the order of assessment. This appeal is disposed of accordingly. In view of the order passed in the main appeal, the connected Civil Application does not survive and the same stands disposed of accordingly." 4. In the result, the Tax Appeal is allowed. The order dated 22.08.2013 passed by the Gujarat Value Added Tax Tribunal is quashed. The appeal be placed back before the Tribunal for fresh consideration and disposal in accordance with law bearing in mind the observations made above. In view of the order passed in the main appeal, the connected Civil Application does not survive and the same stands disposed of accordingly. 5. Before closing, we re....