2015 (4) TMI 212

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....ated 27.02.2013 passed in Second Appeal No.505 of 2011, by which, in appeal preferred by the dealer against the order passed by the First Appellate Authority dismissing the First Appeal on non compliance of the order of pre deposit, the learned Tribunal has entered into merits of the case / assessment order passed by the assessing authority and has modified the same and has directed that the amount of tax dues of Rs. 7,91,646/- be adjusted against the available tax credit of Rs. 13,56,743/- and rest of tax credit of Rs. 5,65,097/- is to be carried forward to the next period and interest and penalty are also removed, the appellant - State of Gujarat has preferred present Tax Appeal. 3.0. That the respondentdealer was assessed under Sectio....

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....nd of non deposit of amount of pre deposit, the learned Tribunal entered into the merits of the assessment order and decided the appeal on merits as if the appeal before the learned Tribunal was against the order passed by the First Appellate Authority on merits and the learned Tribunal has passed the impugned judgment and order not only quashing and setting aside the order passed by the First Appellate Authority but the learned Tribunal has also modified the order of assessment for the year 2006-07 dated 23.5.2011 and has directed that the amount of tax dues of Rs. 7,91,646/- be adjusted against the available tax credit of Rs. 13,56,743/- and rest of tax credit of Rs. 5,65,097/- is to be carried forward to the next period and interest and ....

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....l was against the order passed by the First Appellate Authority dismissing the appeal on non compliance of the order of pre deposit. It is submitted that therefore, the learned Tribunal has materially erred in deciding the appeal on merits and considering the adjudication order on merits. He has also tried to make submission on merits, however as we proposes to remand the matter to the learned Tribunal to decide the appeal on merits and to consider the legality and validity of the order passed by the First Appellate Authority dismissing the same on non compliance of the order of pre deposit of Rs. 3,60,000/-, we do not propose to enter into merits of the case and therefore, we have not permitted Shri Gandhi, learned AGP to submit the case o....

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..... Having heard the learned advocates for the respective parties and considering the order passed by the learned First Appellate Authority and impugned judgment and order passed by the learned Tribunal and in the facts and circumstances of the case, we are of the opinion that the learned Tribunal has committed grave error in deciding the appeal on merits and considering the legality and validity of the adjudication order. It is required to be noted that as such the appeal before the learned Tribunal was against the order passed by the First Appellate Authority dismissing the appeal on non deposit of Rs. 3,60,000/- as pre deposit i.e. on non compliance of the order of pre deposit. It is required to be noted that First Appellate Authority did ....