1987 (6) TMI 377 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Maintainability of appeal before the Sales Tax Appellate Tribunal under section 39 of the Kerala General Sales Tax Act, 1963.
2. Validity of the Deputy Commissioner's rejection of appeals for non-payment of admitted tax.
3. Scope of the appeal before the Tribunal.

Detailed Analysis:

1. Maintainability of Appeal Before the Sales Tax Appellate Tribunal:
The primary issue was whether an appeal is maintainable before the Sales Tax Appellate Tribunal under section 39 of the Kerala General Sales Tax Act, 1963, against an order by the Appellate Assistant Commissioner rejecting an appeal for non-payment of admitted tax. The Tribunal initially accepted the State Representative's preliminary objection that such appeals were not maintainable, arguing that an order of rejection for non-payment of admitted tax under the second proviso to section 34(1) is not appealable under section 39. However, the High Court disagreed with this view. The Court held that any disposal of an appeal, whether on merits or on preliminary grounds like non-payment of admitted tax, is referable to section 34(3) and hence appealable under section 39.

2. Validity of the Deputy Commissioner's Rejection of Appeals:
The Deputy Commissioner had rejected the appeals in limine for non-payment of admitted tax, without providing an oral hearing. The Court observed that even the decision not to entertain the appeal entails the passing of an order by the Appellate Assistant Commissioner, and the assessee is entitled to know the basis and reason for the non-entertainment. The Court emphasized that the assessee must be apprised of the proposal to reject the appeal and given an opportunity to present their case. The Court found that the Deputy Commissioner had indeed provided an opportunity for the assessee to file objections, but no oral hearing was given, which the Court deemed unnecessary in this case.

3. Scope of the Appeal Before the Tribunal:
The High Court clarified that the scope of the appeal before the Tribunal would be limited to determining whether the non-entertainment of the appeal for non-compliance with the second proviso to section 34(1) was proper. Questions relating to the merits of the assessment were beyond the purview of this appeal. The Tribunal had not examined whether the Deputy Commissioner's rejection of the appeals was valid, and thus, the matters were remitted back to the Tribunal for fresh disposal on this specific issue.

Conclusion:
The High Court concluded that the Tribunal erred in holding that the appeals were not maintainable. The Tribunal was directed to take back the appeals on file and determine whether the Deputy Commissioner was justified in rejecting the appeals in limine. The writ petitions challenging the validity of the second proviso to section 34(1) were allowed to be withdrawn, as they were filed only in the alternative. There was no order as to costs in the tax revision cases and the original petitions.

Orders:
- The tax revision cases were disposed of with directions for the Tribunal to reconsider the appeals.
- The writ petitions were allowed to be withdrawn with liberty to raise the points at a subsequent stage if necessary.
- No order as to costs in the tax revision cases and the original petitions.