TaxTMI 
TaxTMI 
2019 (7) TMI 589
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....ed appellant-assessee, warranting rejection of the appeal in terms of the second proviso of Section 19 and proviso of Section 21 (2) of the APGST Act, 1957 or second proviso of Section 31 and proviso of Section 33 (2) of the AP VAT Act, 2005. Similar position obtains regarding the provisions of Telangana State enactments. 3. The High Court dismissed the writ petitions filed by the concerned appellant following the decision of the coordinate bench of the High Court in Ankamma Trading Company Vs. Appellate Deputy Commissioner (CT), Guntur & Anr. (2011) 44 VST 189 (AP) and other decisions taking the same view, despite the appellant pointing out to the High Court that the decision in Ankamma Trading Company (supra) has been impliedly overruled by the Supreme Court in M/s. Innovatives Systems, Rep. by its Managing Partner Vs. State of Andhra Pradesh, Rep. by Principal Secretary to Government Civil Appeal No.2230/2015 (arising out of SLP (C) No.1832/2015 decided on February 23, 2015). In that case, this Court after clearly noting that the High Court had relied upon the judgment and order passed by the Division Bench of the same High Court [in Ankamma Trading Company (supra)] to dismiss....
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....tion has been granted, the doors of the appellate jurisdiction of this Court have been let open and any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. Further, it would not make a difference whether the order is one of reversal or of modification or of dismissal, or of affirming the order appealed against. It would also not make any difference if the order is a speaking or a nonspeaking one. 4. In addition, the appellant(s)assessee( s) have relied on the decisions of this Court in Ranjit Impex Vs. Appellate Deputy Commissioner and Anr. (2013) 10 SCC 655, which has had an occasion to deal with more or less similar provision, if not identically worded, being Section 51 of the Tamil Nadu VAT Act, 2006. Even there the provision contained stipulation such as the proviso of the provisions under consideration pertaining to State of Andhra Pradesh and State of Telangana. It is then urged that even the Division Bench of the High Court in the case of Ankamma Trading Company (supra), in paragraph 25 has taken note of the fact that the proviso of the concerned section does not specifically mention the time within which such proo....
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....tation period specified for filing of an appeal. 6. The respondent State, on the other hand, has supported the exposition in the case of Ankamma Trading Company (supra), and would urge that the view taken in the said decision is the only possible interpretation of the second proviso. In that, if the amount specified in the second proviso is not deposited within the period provided for filing an appeal and including for condonation of delay, such appeal would be inflicted with institutional defect and will have to be rejected on that count in light of the mandate contained in the proviso of the concerned provision. It is urged that the appellants have been illadvised to invoke doctrine of merger. According to the respondentState, on a bare perusal of the decision of this Court in M/s. Innovatives Systems (supra), and the other decisions passed following the same would clearly indicate that it has been passed in the fact situation of the concerned case. Notably, this Court has not interpreted the provisions under consideration or for that matter explicitly overturned the principle expounded by the Division Bench in Ankamma Trading Company (supra). Whereas, a bare reading of the pro....
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....ny order passed or proceeding recorded by any authority under the provisions of the Act other than an order passed or proceeding recorded by an Additional Commissioner or Joint Commissioner, or Deputy Commissioner under subsection (4C) of section 14 may within thirty days from the date on which the order or proceeding was served on him, appeal to such authority as may be prescribed: Provided that the appellate authority may within a further period of thirty days admit the appeal preferred after a period of thirty days if he is satisfied that the dealer had sufficient cause for not preferring the appeal within that period: Provided further that an appeal so preferred shall not be admitted by the appellate authority concerned unless the dealer produces proof of payment of tax admitted to be due, or of such instalments as have been granted, and the proof of payment of twelve and half per cent of the difference of the tax assessed by the assessing authority and the tax admitted by the appellant, for the relevant assessment year, in respect of which the appeal is preferred. 21. Appeal to the Appellate Tribunal.( 1) Any dealer objecting to an order passed or proceeding recorded 31. ....
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....ted by the appellant to be due or in such instalments thereof as might have become payable as the case may be, and twenty five per cent of the difference of the tax ordered by the revisional authority under subsection (2) of section 20 and the tax admitted by the appellant: Provided also that the assessing authority shall refund the said amount of twelve and half per cent or twenty five per cent or fifty per cent of the difference of tax assessed by the assessing authority or revisional authority as the case may be and the tax admitted and paid by the appellant, with simple interest calculated at the rate of 18 per cent per annum if the refund is not made within 60 days from the date of receipt of the order passed under section 19 or section 21. (a) by any authority prescribed, on appeal under section 31, or (b) by the Additional Commissioner, or Joint Commissioner or Deputy Commissioner under section 21 or 32 or 38; or (c) by any authority following the ruling or order passed under section 67; May appeal to the Appellate Tribunal within sixty days from the date on which the order or proceeding was served on him. (2) The Appellate Tribunal may within a further period of sixty ....
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.... for the first time - be it for condonation of delay in filing the appeal and/or to admit it on merits or otherwise. The proof of such payment having been made could be produced thereat. Failing which, the Appellate Authority will have no other option but to reject the appeal on that count. The Appellate Authority has no power to extend the time to deposit the specified tax dues. 9. Suffice it to observe that, stricto sensu, the said proviso is not a provision of pre-deposit at the stage of filing, institution or presentation of the appeal as such; but is a provision stipulating payment of tax dues as a prerequisite or sine qua non for consideration of appeal on merits or otherwise and/or for condonation of delay in filing the same, as the case may be, for the first time. If we may say so, it is also to impose fetter on the Appellate Authority from admitting the appeal for consideration on merits. It is well recognized that filing, institution or presentation of appeal in the office of the Appellate Authority is an independent event than the appeal being taken up for consideration "for the first time" for being admitted on merits or otherwise and/or for condonation of delay in fi....
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....n the decision of this Court in Ranjit Impex (supra). In that case, the Court considered almost similar stipulation in Section 51 of the Tamil Nadu VAT Act, 2006. Indeed, the second proviso therein uses the expression no appeal shall be "entertained", unlike the expression used in the provisions under consideration that the appeal so preferred "shall not be admitted". We are conscious of the fact that the first proviso pertaining to maximum period of delay to be condoned by the Appellate Authority, also uses the expression "admit the appeal". That expression "admit", however, must be read to mean filing, institution or presentation of the appeal in the office of the Appellate Authority. Whereas, the expression "admitted" used in the second proviso will have to be construed as analogous to expression "entertained". We are inclined to take this view as the setting in which the provisions under consideration appear leaves no manner of doubt that it is ascribable to the event of taking up the appeal for consideration, for the first time, to admit it on merits or otherwise and/or for condonation of delay in filing the appeal, as the case may be. Before that event occurs, it is open to t....
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....hem was taken up for consideration for the first time for admission on merits. In such a situation, the stated proviso becomes unavailable to reject the appeal on the ground of institutional defect. In this view of the matter, all these appeals must succeed. 17. While parting, we may observe that taking advantage of the interpretation given by us, it is possible that some unscrupulous litigant (assessee) may file an appeal within the limitation period but keep it under defect so that the same does not proceed for consideration before the Appellate Authority. To obviate such a mischief, we hold and direct that the Appellate Authority shall be obliged to take up every singular appeal for consideration for admission on merits and/or for condonation of delay in filing the appeal for the first time, no later than thirty days from the date of its filing, institution or presentation in the office of the Appellate Authority. This direction shall be complied with by all concerned meticulously, without any exception. That is the only way to secure the interests of the Revenue and at the same time to effectuate the purpose underlying the proviso regarding the deposit of specified amount of ....
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....ised by the Commercial Tax Officer by passing a revision order dated 25th March, 2013. Against that decision, respondentassessee preferred appeal before the State Sales Tax Appellate Tribunal. During the pendency of the said appeal, respondent filed a writ petition to challenge the orders passed by the Commercial Tax Officer dated 27th February, 2013 and 25th March, 2013. That writ petition has been disposed of by the High Court vide impugned judgment, with liberty to comply with the condition of paying the tax dues in terms of the second proviso of the concerned provision within a period of six weeks from the date of receipt of the copy of order and upon such compliance, the Appellate Authority would decide the pending appeal on merits. 23. Having regard to the exposition in Civil Appeal No.7574 of 2014, decided today, it must follow that if the appeal filed by the respondent is still pending and has not been taken up for consideration so far by the Appellate Authority, only then it would be open to the respondent to deposit the requisite amount and produce the proof of such deposit before the Appellate Authority. If, however, the appeal has already been taken up for considerati....
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....ng back but not implemented thus far. The appellant, therefore, submitted new representation to the assessing authority on 15th September, 2012. The Commercial Tax Officer eventually, issued a certificate on 12th October, 2012 certifying that the appellant has input tax credit of Rs. 92,01,606/, eligible to be refunded either in cash or adjusted. On 13th October, 2012, the Commercial Tax Officer issued proceedings holding that the appellant has an excess tax credit of Rs. 66,46,284/for adjustment or refund. 28. The appellant being aggrieved by the orders passed by the Appellate Deputy Commissioner rejecting appeal on 24th July, 2012 on the ground of nonpayment of requisite disputed tax amount, filed second appeal before the Sales Tax Appellate Tribunal. That came to be allowed by setting aside the order rejecting the first appeal and instead directing the first Appellate Authority to restore the appeal and hear the appellant, as the order dated 24th July, 2012 was an ex parte order passed without hearing the appellant. 29. In remanded proceedings, appellant filed evidence before the first Appellate Authority on 21st July, 2013 and requested to consider the evidence and give adj....
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.... which arises is whether the appellant was entitled for adjustment of the amount mentioned in the tax credit certificate issued in favour of the appellant. Admittedly, the appellant had specifically taken that plea before the first Appellate Authority. However, as already mentioned hitherto the first Appellate Authority failed to analyse that aspect which it was expected to do, in terms of the earlier order passed by the second Appellate Authority and even otherwise. Further, this grievance was specifically made before the High Court in the writ petition filed by the appellant as is noticed from the impugned judgment, the relevant portion of the judgment recording the argument of the appellant, reads thus: "......... Aggrieved thereby, the present Writ Petition is filed. Sri Tejprakash Toshniwal, Learned Counsel for the petitioner, would submit that in M/s. Ideal Detonators Pvt. Ltd. v. Commercial Tax Officer, the Supreme Court had directed the Appellate Deputy Commissioner to revive the earlier order and dispose of the same on merits, after due notice to the parties; in Fytochem Formulations Ltd. v. Commercial Tax Officer, a Division Bench of this Court had held that it is incu....
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....being equivalent to 100% of the tax due. The appellant relies on a certificate dated 4th April, 2015 issued by respondent No.1 and stated on oath that a tax credit carry forward of Rs. 10,63,683/by end of May, 2014 is available to the appellant. In the appeal preferred by the appellant against the order imposing additional tax and penalty filed on 7th April, 2015, the appellant specifically took a plea that the input tax credit and alleged variations between purchase and sales transactions recorded in the books of account visàvis the returns filed under the AP VAT have been wrongly disallowed. Notably, the appellant filed an affidavit stating that a tax credit of Rs. 10,63,683/is available to the appellant after filing the monthly return for May, 2014 and that such credit has not been adjusted to any other tax liability and thus prayed that the said credit may be adjusted towards the twelve and a half percent (12.5%) of Rs. 67,57,696/, which comes to Rs. 8,44,712/. Despite this specific stand taken by the appellant on affidavit, the respondent No.3 issued notice claiming that the appeals filed by the appellant were not compliant with Section 31 for want of proof of payment o....
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.... 38. Even the High Court has failed to consider this aspect of the matter. Whereas, if the representation/request made by the appellant is just and deserved to be accepted, the appellant would be right in contending that no payment towards the amount specified in the stated proviso under consideration was required to be made by the appellant and for that reason, the appeal preferred by the appellant ought to proceed for consideration for admission on merits. In that, upon accepting the representation to adjust the tax credit of Rs. 10,63,683/, a certificate/endorsement could be issued to the appellant by the department so that the said amount is adjusted towards payment of specified amount of tax dues including twelve and a half percent (12.5%). There is force in this submission. However, instead of examining this plea raised by the appellant in this appeal, we deem it proper to relegate the parties before the High Court to consider the same on its own merits, in accordance with law. We do not wish to dilate on any other contention in this judgment. We leave all questions and contentions, available to both sides, open to be decided by the High Court on its own merits. 39. In view....