TaxTMI 
TaxTMI 
2015 (11) TMI 157
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....n 71 thereof dealing with failure to keep true and complete accounts. The proceedings initiated were in respect of the following offences that were alleged to have been committed by the Petitioner viz:- (i) non-declaration by the Petitioner of two godowns maintained by it; (ii) variation in stock valued at Rs. 8294 with a tax effect of Rs. 1037; and (iii) un-accounted sales worth Rs. 32,823 with a tax effect of Rs. 4103. 2. The Petitioner chose to have the offences compounded in terms of Section 74 of the Act and accordingly preferred Annexure-A application before the Intelligence officer who proceeded to accept the application and determine the tax payable as Rs. 1,52,000 and the compounding fee payable as Rs. 1,52,000. The order of the Intelligence Officer is produced as Annexure-B. 3. On receipt of Annexure-B order, the Petitioner preferred an appeal against the said order before the Appellate Authority who, vide Annexure-C order, considered the matter on merits and rejected the appeal. Aggrieved by the order of the first Appellate Authority, the Petitioner preferred a further appeal before the Appellate Tribunal which rejected the appeal on the ....
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....r accepting its compounding application by filing an appeal under Section 55 of the Act. He supports the order of the Appellate Tribunal by contending that the findings of the Tribunal are in accordance with the settled law on the subject. 5. We have considered the submissions made on behalf of the Petitioner Assessee as well as the State Government. The Appellate Tribunal has dismissed the appeal preferred by the Petitioner on the ground that the order of the first Appellate Authority, that was impugned by the Petitioner before it, was itself one that could not have been passed by the said authority. The Tribunal finds that an order of compounding passed under Section 74 of the Act is not an appealable order for the purposes of Section 55 of the Act and hence the first Appellate Authority exercised an appellate jurisdiction that he did not have under the Act. This being the case, the Tribunal did not see any reason to entertain the further appeal preferred by the Petitioner against the order of the first Appellate Authority. 6. In order to appreciate the stand taken by the Appellate Tribunal, it is necessary to examine the provisions of Section 55 of the Act together with Se....
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....ioner (Appeals) may, at his discretion, give such directions as he thinks fit in regard to the payment of the tax before the disposal of the appeal, if the Appellant furnishes sufficient security to his satisfaction in such form and in such manner as may be prescribed. (5) In disposing of an appeal, the Deputy Commissioner (Appeals) and Assistant Commissioner (Appeals) may, after giving the Appellant a reasonable opportunity of being heard:- (a) in the case of an order of assessment or penalty, either confirm, reduce, enhance or annul the assessment or the penalty or both, (b) set aside the assessment and direct the Assessing Authority to make a fresh assessment after such further enquiry as may be directed; (c) or pass such other orders as he may think fit; or (d) in the case of any other order, confirm, cancel or vary such order: Provided that at the hearing of any appeal against an order of the Assessing Authority, the Assessing Authority or the officer empowered by the Commissioner in this behalf shall be heard. (6) The order of the Deputy Commissioner (Appeals) and Assistant Commissioner (Appeals) disposing of an a....
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....nt under Section 25, the appeal shall be accepted only after providing proof of payment of undisputed tax and other amounts which have become due and payable. Disposal of appeal Sub-section (5) provides for the manner of disposing off the appeal. Before disposing off the appeal, the Assessing Authority whose order is appealed against or such officer empowered by the commissioner shall be heard. The order shall state the point of determination, the decisions and the reasons for such decision. The order appealed against may be amended as per the decision of the Deputy Commissioner (Appeals). 7. It is clear from a reading of Section 55 that an appeal lies to the first Appellate Authority against any order issued or proceedings recorded under the Act other than those that are expressly excluded under that provision. An order passed under Section 74 of the Act is not expressly excluded by Section 55. The question to be examined, however, is whether an order passed under Section 74 is, on account of its very nature, one that can be appealed against. It must be noted that by invoking the said provision, an Assessee virtually admits to the commission of the offence alleged agai....
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....er Act does not permit an Assessee to approbate and reprobate. No doubt it may be open, in cases of patent mistakes in the quantification of the compounding fee payable, for an Assessee to contest the order of the Competent Authority in an appeal under Section 55 of the Act but that recourse can be had only in cases where the mistake is one that is relatable solely to the quantification of the compounding fee and does not militate against the admission by the Assessee of its having committed the offence alleged against it. The legal justification for such an appeal would be the contention that while the Assessee has admittedly compounded the offence, the department has no right to demand or collect any amount towards compounding fee, as is in excess of what is authorised by the statutory provision. 9. The contention of the Petitioner, in the instant case, is that it is aggrieved by the order of the Competent Authority only to the extent it wrongly quantifies the compounding fee payable by it under Section 74 of the Act. According to the Petitioner, it had already accounted the turnover, relatable to the stock of goods found in the undeclared godowns, in its books of accounts, we....