AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2024 (6) TMI 753
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...., has been dismissed. 2. The brief facts of the case are that the petitioner was in business of trading of hardware goods, L.D. Oil, J.D. Oil, Thinner, Furnane Oil etc. under the name and style of M/s. P.G. Oil Traders which was a proprietorship concern. M/s. P.G. Oil Traders was registered under the provisions of the Assam General Sales Tax Act, 1993 (hereinafter referred to be "AGST Act, 1993"). 3. As per the petitioner, the operation of the aforesaid M/s. P.G. Oil Traders was stopped sometime in the month of April, 2003 and the registration certificate issued to it under the AGST Act, 1993 had also been surrendered which was duly acknowledged by the office of the Assistant Commissioner of Taxes, Sivasagar, Assam/ respondent No. 4. 4. It is the case of the petitioner that M/s. P.G. Oil Traders has submitted its returns for the assessment years 2002-2003 and 2003-2004 before the Assessing Authority as per the provisions of Assam General Sales Tax Rules, 1993. The assessments for the aforesaid years were finalised and the assessment orders were passed by the Assessing Officer for the assessment years 2002-2003 on 31.03.2008 and for the year 2003-2004 on 27.07.2008. 5. I....
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....pellate authorities is confined to the power conferred under section 79 (5) which requires proof of payment of at least 25% of the total disputed amount. As the appellant is unable to produce proof of payment of 25% of the disputed amount in the form of Treasury Challan the appeal memorandum is not admitted. Inform the appellant, the Assistant Commissioner of Taxes, Sivasagar accordingly." 8. Against the order dated 29.07.2013, the petitioner had preferred an appeal before the Assam Board of Revenue, Guwahati. However, the Assam Board of Revenue has dismissed the said appeal vide impugned order dated 08.04.2014 while observing that deposit of 25% of the demand is a provision of law. The petitioner cannot have a claim for its waiver. The aforesaid order dated 08.04.2014 reads as under: "ORDER This is an appeal against an order dated 29/07/2013 of the Deputy commissioner of Taxes (Appeals) Jorhat wherein he has rejected the prayer of the Appellant to waive 25% of the demanded tax for the admission of the appeal and an the failure of the appellant to deposit the same, has dismissed it. Deposit of 25% of the demand is a provision of law. The Ap....
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....issioner of Taxes (Appeals), Jorhat/respondent No. 3, Mr. R.S. Mishra, learned counsel for the petitioner has argued that the Assam Board of Revenue as well as the respondent No. 3 has failed to take into consideration that the appeal filed by the petitioner before the respondent No. 3 was required to be considered as per the provisions of Section 33 of the AGST Act, 1993 and not as per the provisions of Section 79 of the VAT Act, 2003. It is contended that proviso to Section 33(6) of the AGST Act provides that the Appellate Authority may, if it thinks fit for reasons to be recorded in writing and subject to furnishing of such security as such authority may deem fit, admit an appeal against any order with part payment or without any payment of the disputed amount of tax including penalty. 12. It is contended that in the present case, the respondent No. 3, without even considering the request of the petitioner, has straightway dismissed the appeal while observing that the petitioner has failed to furnish proof of payment of at least 25% of the total disputed amount, as mandated under Section 79 (5) of the VAT Act, 2003. It is contended that the Assam Board of Revenue, at the firs....
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....lation to the aforesaid assessment years were passed in the year 2008, i.e. on 31.03.2008 and 27.07.2008, respectively. In such circumstances, question arises for determination is whether appeal filed by the petitioner being aggrieved with the said assessment orders is required to be considered as per the provisions under AGST Act, 1993 or VAT Act, 2003. The said question has already been answered by the Division Bench of the Hon'ble Supreme Court in Messrs. Hoosein Kasam Dada (India) Ltd. (supra). The said judgment was later on affirmed by a Constitution Bench of the Hon'ble Supreme Court in Garikapati Veeraya (supra). In Messrs. Hoosein Kasam Dada (supra), the Hon'ble Supreme Court has held as under: "(8) The above decisions quite firmly establish and our decisions in Janardan Reddy v. The State, AIR 1951 SC 124 (O) and in Ganpat Rai v. Agarwal Chamber of Commerce Ltd., AIR 1952 SC 409 (P), uphold the principle that a right of appeal is not merely a matter of procedure. It is a matter of substantive right. This right of appeal from the decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in, and before a d....
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....g right of appeal that old law must govern the exercise and enforcement of that right of appeal and there can then be no question of the amended provision preventing the exercise of that right. The argument that the authority has no option or jurisdiction to admit the appeal unless, it be accompanied by the deposit of the assessed tax as required by the amended proviso to S.22(1) of the Act overlooks the fact of existence of the old law for the purpose of supporting the pre-existing right and really amounts to begging the question. The new proviso is wholly inapplicable in such a situation and the jurisdiction of the authority has to be exercised under the old law which so continues to exist. The argument of Sri Ganapathy Aiyar on this point, therefore, cannot be accepted. (10) The learned Advocate urges that the requirement as to the deposit of the amount of the assessed costs does not affect the right of appeal itself which still remains intact, but only introduces a new matter of procedure. He contends that this case is quite different from the case of Sardar Ali v. Dolimuddin (E) (supra), for in this case it is entirely in the power of the appellant to deposit the tax ....
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....e 'lis' is to be taken as arising only on the date of assessment, there was a possibility of such a 'lis' arising as soon as proceedings started with the filing of the return or, at any rate, when the authority called for evidence and started the hearing and the right of appeal must be taken to have been in existence even at those dates. For the purposes of the accrual of the right of appeal the critical and relevant date is the date of intimation of the proceedings and not the decision itself. (12) For all the reasons given above, we are of the opinion that the appellant's appeal should not have been rejected on the ground that it was not accompanied by satisfactory proof of the payment of the assessed tax. As the appellant did not admit that any amount was due by it, it was under the section as it stood previously entitled to file its appeal without depositing any sum of money. We, therefore, allow this appeal and direct that the appeal be admitted by the Commissioner and be decided in accordance with law. The appellant is entitled to the costs of this appeal and we order accordingly. Appeal allowed." (Emphasis supplied) 20. While affirming the said view, the....
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....st an order imposing penalty shall lie unless such appeal is accompanied by satisfactory proof of the payment of tax including penalty, if any, which is admitted to be due or twenty percent of the amount of tax including penalty, if any, which has been assessed or levied whichever is higher: Provided that the appellate authority or Tribunal may, if it thinks fit for reasons to be recorded in writing and subject to furnishing of such security as such authority may deem fit, admit an appeal against such order with part payment or without any payment of the disputed amount of tax including penalty, if any, required under this sub-section with a view to mitigate undue hardship which is likely to be caused to the dealer or person if the payment of such disputed amount is insisted on." 23. As per the above provisions, no appeal against the order of the assessment of tax shall lie unless such appeal is accompanied by a statutory proof of payment of tax including penalty, if any, or 20% of the amount of tax including penalty. However, a discretion was given to the Appellate Authority to waive the condition of said pre-deposit or to order for part payment of the deposit of tax b....