TaxTMI 
TaxTMI 
2015 (5) TMI 170
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....ppeals) had not decided the appeal on merits but dismissing it only for non payment of pre-deposit? 2. Ms. Vaibhavi Parikh, learned advocate has appeared on behalf of the respondent-dealer and with the consent of the learned advocates appearing on behalf of the respective parties, the present Tax Appeal is taken up for final hearing today. 3. The main grievance, which is voiced in the present Tax Appeal, is that despite the fact that the appeal before the learned tribunal was against the order passed by the first appellate authority on pre-deposit and / or against the order passed by the first appellate authority dismissing the appeal solely on the ground of non deposit of pre-deposit, the learned tribunal instead of considering the l....
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....eal i.e. without considering the legality and validity of the order passed by the first appellate authority either with respect to pre-deposit and / or dismissing the appeal on non deposit of pre-deposit, has entered into the merits of the case and has decided the appeal before it as if the appeal was against the decision of the first appellate authority on merits. The aforesaid is absolutely impermissible. 6. The learned advocates appearing on behalf of the respective parties have brought to our notice number of decisions of this Court quashing and setting aside similar orders passed by the learned tribunal by which in appeal against the order passed by the first appellate authority dismissing the appeal on non deposit of pre-deposit, t....
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....g the very 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 nee....
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....bunal was whether pre deposit 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 circuiti....
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....there with a hope that in future the learned tribunal will absolutely follow the decision of this Court, more particularly, in Tax Appeal No.711/2013 and other subsequent decisions. 7. In view of the above and for the reasons stated in the judgment and order passed by the Division Bench of this Court in the case of State of Gujarat Vs. Tudor India Ltd. in Tax Appeal No.711/2013, without further entering into the merits of the case and / or expressing anything on merits in favour of either parties, we quash and set aside the impugned judgment and order passed by the learned tribunal-learned Value Added Tax Tribunal, Ahmedabad dated 06/08/2013 in Second Appeal No.775/2011 and remit the matter back to the learned tribunal with a direction t....