TaxTMI 
TaxTMI 
2015 (2) TMI 592
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....ppellant in Tax Appeal No.1353 of 2014. 4. Tax Appeal No.1353 of 2014 has been listed for the first time. 5. Hence, Notice for final disposal is issued and Mr.Pranav Trivedi, learned AGP, who is appearing for the appellant - State of Gujarat in cross appeal being Tax Appeal No.1323 of 2014, has waived service of notice. 6. In both these appeals, substantial question of law can be formulated as under:- "Where the Hon'ble Tribunal was right in adjudicating the appeal on merits, instead of restricting itself to the issue of predeposit ?" 7. We have heard Mr.Trivedi, learned AGP for the State and Mr.Asthavadi, learned Counsel for the Assessee. 8. As such, the facts are not in dispute to the extent that after the order of the Assessing Officer, appeal came to be preferred by the Assessee before the Deputy Commissioner of Commercial Tax and the prayer of the Assessee for pre-deposit of 10% of the amount was not accepted and the appeal was dismissed. Against the said order, the matter was carried before the Tribunal. The Tribunal, instead of considering the aspect of pre-deposit, touched the merits of the appea....
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....ecorded as under: "3. We are of the opinion that the Tribunal committed serious error in examining the appellants grievances on the merits of the order of assessment. The order of assessment was passed by the adjudicating authority, which was appellable 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 security or such as the appellate authority may direct. 4. In view of section 73(4) of the Act, therefore, such appea....
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....ssues on merits about the additions made 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 more than one occasion. 7. In an order dated August 30, 2013 rendered in Tax Appeal No.711 of 2013 in the case of State of Gujarat v. Tudor India Ltd., the Division Bench of this Court had come across one such order of the Tribunal and made the following observations : &nbs....
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....ot ipso facto entitle the Tribunal to give a complete go bye to the well laid down procedures of law as also such requirement of predeposit and decide the matter on merit. We are also backed in our conclusion by another decision of the Apex Court rendered in case of Commissioner of C.Ex., Chandigarh v. Smithkline Beecham Co. Health C. Limited., reported in 2003 [157] ELT 497 (SC), wherein it is observed, thus "2. This appeal is filed against an order passed by the Customs, Excise & Gold [Control] Appellate Tribunal dated 19th December 2002. The Tribunal was hearing an appeal against an order dated 23rd April 2002 passed by the Commissioner of Central Excise [Appeals]. By that order, the Commissioner [Appeals] had merely dismissed the appeal because predeposit was not made. The Commissioner [Appeals] had not gone into the merits. Therefore, the only question before the Tribunal was whether predeposit was required or not. The Tribunal has chosen 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 Tribun....