TaxTMI 
TaxTMI 
TaxTMI 
2015 (2) TMI 838
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssessee(s) in the respective matters. 4. The learned Counsel appearing for both the sides have brought to our notice the recent order passed by this Court in Tax Appeal No.1320 of 2014 and allied matters decided on 4.2.2015, whereby similar question had arisen for consideration in the those appeals. 5. We may record that in Tax Appeal No.1320 of 2014 and allied matters decided on 4.2.2015, this Court passed the following orders:- 1. The present appeal has been preferred by the Revenue on the four questions of law mentioned at paragraph No.5. However, in our view, only first question would arise for consideration, considering the facts and circumstances of the case. The same can be reproduced as under:" Whether the Tribunal erred in adjudicating on merits despite first Appellate Authority adjudicated only on the issue of predeposit?" 2. We have heard Mr.Dave, learned A.G.P. appearing for the appellant and Mr.Gupta, learned counsel appearing for the respondent. 3. The short facts appear to be that the assessment was made by the Assistant Commissioner of Commercial Tax (hereinafter referred to as the A.O.) and the outstanding tax amount with penalty was assessed at Rs. 1,09,561/.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed with, the matter may be remanded to the First Appellate Authority, but the Tribunal without considering the said aspect should not consider the merits of the appeal for liability of tax, penalty, interest, etc. 10. At this stage, we may refer to the decision of this Court dated 11.12.2014 in Tax Appeal No.1317 of 2014, the same reads as under:1. Notice for final disposal was issued on the premise that a limited question needs to be gone into in this tax appeal. We have considered the following substantial question of law: "Whether the Hon'ble Tribunal was right in adjudicating the appeal on merits instead of restricting itself to the issue of predeposit?" 2.It is undisputed that the appeal before the Tribunal arose out of the order passed by the first appellate authority on question of predeposit. The Tribunal, in the impugned judgement, instead of deciding such issue, considered the questions on merits and substantially allowed the assessee's appeal. In our opinion, the only scope of the appeal before the Tribunal was, whether the first appellate authority had committed an error in insisting on a certain predeposit being made by the assessee in order to pursue the ap....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is decision to reject such an appeal for noncompliance with such requirement was correct or not. 5. Unless and until the answers were given to such questions, the appellants first appeal before the appellate authority was simply not maintainable and could not have been entertained. If that be so, the Tribunal could not have entered into merits and in the appeal before itself and given a judgment on the validity of the order of assessment. In the process, the Tribunal jettisoned the first appeal before the Appellate Commissioner and also waived the requirement of predeposit without passing any order to that effect. 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 appe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stage and exercise the powers of first appellate authority. We say so as the Statute provides that even on adjudication of the issue on merit by the first appellate authority, either side is entitled to 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 Court in case of Benara Valves Limited v. Commissioner of Central Excise, reported in 2006 [204] ELT 513 (SC). 8.1. If either side approaches the Tribunal, being aggrieved by the order of either grant or rejection of requirement of predeposit, it is open for the Tribunal to take into consider....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t in appeal on merits. In the present case, however, we have suo motu taken such an objection against the decision of the Tribunal and in fact, the appellant had partially succeeded before the Tribunal. 9. In the circumstances, the order dated April 29, 2013 passed by the Gujarat Value Added Tax Appellate Tribunal at Ahmedabad 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. It would be open for the appellant to amend his appeal before the Tribunal, for which he may make an application latest by February 28, 2014. It is clarified that if the appellant fails to amend the prayer clauses of his appeal before the Tribunal, the remanded appeal shall not be entertained 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." 3. Under the circumstances, the question is answered in favour of the appellate. Judgement of the Tribunal is set aside. Appeal is restored before the Tribunal fo....