TaxTMI 
TaxTMI 
TaxTMI 
2015 (2) TMI 837
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....eals are detached from Tax Appeal No.1321 of 2014. 3. In Tax Appeal No.1331 of 2014, after hearing Mr.Trivedi, learned A.G.P. and Mr.Asthavadi, learned counsel, who is appearing for the Assessee, we find that the question is required to be re-framed and the same can be formulated as under:- "Whether the Tribunal was right in adjudicating the appeal on merits instead of restricting itself to the issue of pre-deposit?" Hence, such question is framed accordingly. 4. We may also record that Tax Appeal No.1355 of 2014 is arising from the very decision of the Tribunal dated 11.03.2014 in Second Appeal No.595 of 2012 which is also subject matter of Tax Appeal No.1331 of 2014. Hence, the question as reformulated hereinabove for jurisdiction of the Tribunal to examine the merits instead of restricting itself to the issue of pre-deposit would be required to be considered in the present appeal. 5. We have heard Mr.Asthawadi, learned counsel appearing for the Assessee and Mr.Trivedi, learned A.G.P. for the Revenue. 6. On facts, it appears that vide order dated 30.06.2012 in appeal before the Deputy Commissioner of Commercial Tax, application for deposit of 10% of tax for entertainment of....
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....ded 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 appeal could not have been entertained unless in terms of proviso, the appellate authority for reasons recorded in writing relaxed the requirement of full predeposit. In the present 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 ord....
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....ellate 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 : "7. As we have noticed in number of matters, this unacceptable trend of deciding the appeals on merit, even when the first appellate authority has rejected the case of assessee on the ground of predeposit, instead of considering the request of deposit of predeposit, such determination of the entire appeal by the Tribunal at the such juncture, in our opinion, is not a desirable approach. We may not choose to interfere in all such cases where the Tribunal has straightway chosen to decide the matter on merit instead of determining issue of predeposit which was at large before it. However, so as to ensure that a dent is made in such prac....
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....missed 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 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 short circuiting of the process at any stage. We have chosen not to enter the arena of merit of the case at all as is apparent from the discussion held hereinabove. 8. The learned Assistant Government Pleader Mr.Jaimin Gandhi, however, relied on the judgment dated September 12, 2013 rendered by the Division Bench of....