TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 992
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....-payment of Part Payment fixed by the First Appellate Authority to interfere with the amounts fixed by the First Appellate Authority towards Part Payment on the ground that the said Authority has not exercised the discretion properly, even though the Respondent has not challenged the validity or correctness of the Order fixing the amount of Part Payment under Section 55(5) of the Bombay Sales Tax Act, 1959 in Second Appeal when that Order was passed? (ii) Whether the Hon'ble Tribunal was justified in law in holding that the validity of the Part Payment Order can be questioned in Second Appeal which was against the Summary Rejection of First Appeal for non-payment of Part Payment fixed under Section 55(5) of the Bombay Sales Tax Act, 1959? (iii) Whether the Hon'ble Tribunal was justified in law in holding that the Order of Summary Rejection can not be separated or bifurcated from the Order of Part Payment? (iv) Whether the Hon'ble Tribunal was justified in law in taking a view that the Part Payment Order had not attained finality and the Petitioner's Appeal was not rendered incompetent upon the Petitioner's failure to deposit the sum wi....
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....ed 28 August 1995, summarily rejected the assessee's first appeals. (g) Against the orders dated 28 August 1995, the assessee preferred second appeals before the Tribunal, under the provisions of Section 55(2) of the said Act. (h) The Tribunal vide its Judgment and Order dated 22 November 1996 has set aside the First Appellate Authority's order dated 28 August 1995, modified the part payment amount to Rs. 22,000/- in each of the appeals and upon noticing that the same was already paid, remanded the first appeals to the First Appellate Authority for disposal on merits. (i) Aggrieved by the Tribunal's judgment and order dated 22 November 1996, the applicant (Revenue) sought a reference under Section 61 of the said Act. This reference was ordered by Judgment and Order dated 6 December 2022, referring the above questions for the determination of this Court. (j) In the meantime, by order dated 11 December 2000, the First Appellate Authority, acting on the remand by the Tribunal vide its judgment and order dated 22 November 1996, allowed the assessee's appeals, set aside the assessment order and remanded the matter for fresh assessment to the Assistant....
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....if the order is made by a Sales Tax Officer, or any other officer subordinate thereto, to the Assistant Commissioner; (b) if the order is made by an Assistant Commissioner, [to the Deputy Commissioner]; (c) if the order is made by a Deputy Commissioner, Additional Commissioner, to the Tribunal. (2) In the case of an order passed in appeal by an Assistant Commissioner or by Deputy Commissioner, a second appeal shall lie, at the option of the appellant, either to the Commissioner or to the Tribunal. (3) Every order passed in appeal under this section, shall, subject to the provisions of sections 57, 61 and 62 be final. (4) Subject to the provisions of section 60, no appeal shall be entertained unless it is filed within sixty days from the date of the communication of the order appealed against. (5) No appeal, against an order of assessment with or without penalty, [or interest] or against an order imposing a penalty, [or interest], or against an order directing the forfeiture of any tax collected by a dealer, shall ordinarily be satisfactory proof of the payment of the tax with or without penalty, [or interest] or as the case may ....
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....he deposit of the part payment have not been referred to in Section 56, still that circumstance would not be very relevant because Section 55(1) is concerned with an appeal from an original order. In this case, we are mainly concerned with the issue of maintainability of an appeal before the Tribunal against the order dated 29 August 1995 made by the Deputy Commissioner of Sales Tax (Appeals), i.e, the First Appellate Authority. 11. Therefore, the provisions of Section 55(2) would apply to such a situation. Section 55(2) provides that in case of an order passed in appeal by an Assistant Commissioner or by a Deputy Commissioner, a second appeal shall lie at the option of the appellant, either to the Commissioner or to the Tribunal. The appeal filed before the Tribunal, in which the Tribunal has made the impugned Judgment and Order dated 22 November 1996, therefore, relates to Section 55(2) of the said Act. 12. Section 55(3) of the said Act provides that every order passed in appeal under this Section, i.e. Section 55, shall, subject to the provisions of Sections 57, 61 and 62, be final. Therefore, it was urged that the first appellate authority's order dated 11.7.1995, determi....
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....f the parties. 16. The Division Bench, in M/s Bhambani Shipping Ltd (supra), after referring to the decisions in Gokal Chand (supra) and Shankarlal Aggarwal (supra) held as follows: - "In our view, what is held by the Apex Court and this Court will squarely apply to the provisions of sub-section (1) of Section 27 of the said Act of 2002 and an interlocutory or a procedural order passed by the Appellate Tribunal during the pendency of proceedings can be always challenged by the aggrieved party while preferring an appeal against the final order". 17. Therefore, the words "every order" in Section 55(3) cannot be held to include an order determining the amount of payment or part payment required to be made by the Appellant for maintaining an appeal against an order of assessment with or without penalty or interest. The argument that such an order attained finality for want of appeal to the Tribunal, therefore, cannot be accepted. 18. Going by the decision of the Coordinate Bench of this Court in M/s. Bhambani Shipping Ltd (supra), it is doubtful whether an appeal would even lie against the order dated 11 July 1995 made by the First Appellate Authority, even if it is c....
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....ral rule that interlocutory or procedural orders, which are steps leading to the final decree, can be challenged in an appeal from the final order, cannot be excluded in this case. Section 105(1) of the Code of Civil Procedure provides that save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. 23. There is no reason why this principle should not apply to appeals under the said act. This is more so because there is doubt whether the order dated 11 July 1995 could have been appealed under Section 55(2) of the said Act. Therefore, if an appeal clearly lies against the order dated 28 August 1995, which is inter alia based upon the order dated 11 July 1995, we see no reason why, in the appeal against the order dated 28 August 1995, no ground could be raised to attack the validity of the order dated 11 July 1996. 24. From this perspective, we also hold that there was nothing wrong in the Tribunal exa....
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....ount determined within the prescribed period, i.e. final order dated 28 August 1995, may be different. There was no warrant to conclude that the two orders had to be challenged independently. The order dated 11 July 1995 was basically a procedural order in the nature of one of the steps towards the disposal of the main appeal. Accordingly, in the appeal challenging the final disposal order dated 28 August 1995, there was no bar to the Respondent - Assessee questioning the order dated 11 July 1995. 30. The observations of the Hon'ble Supreme Court in Achal Mishra (Supra) support such a course of action in the context of the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act and the Code of Civil Procedure. The decisions in Bhambani Shipping (Supra), Gokal Chand (Supra), and Shankarlal Agarwal (Supra) also support such a course of action. There is nothing under the said Act which precludes such a course of action. The right to maintain an appeal against the order dated 11 July 1995 also appears rather doubtful. Therefore, the contention that the two orders were required to be separated or bifurcated cannot be accepted. Question (iii) referred for....