2013 (6) TMI 82 - HC - VAT and Sales Tax

Stay - requirement of pre-deposit - whether to deposit tax with interest etc. or only the tax portion alone - Section 17D(5) of KGST Act - held that - The proviso to sub-section (5) of Section 17D categorically stipulates that the appeal will lie, if the dealer has paid the entire tax amount and the provision does not make any suggestion to the contrary, so as to have included the interest portion as well. The tax amount , as per order being a sum of ₹ 2,55,111/-, which in turn has been demanded to be satisfied. The said liability has been satisfied by the petitioner and there is no case for the respondents that the tax amount has not been satisfied, but for the interest portion. Matter restored before the tribunal to consider the same on merits, passing appropriate orders, in accordance with law, as expeditiously as possible. - Decided in favor of assessee.

Summary

Issues involved:
Interpretation of Section 17D of the KGST Act regarding the requirement to deposit entire arrears for challenging an order under appeal.

Analysis:
The case involved a writ petition questioning whether the petitioner, challenging an order under Section 17D of the KGST Act by way of appeal, must deposit the entire arrears due for the assessment year or if satisfying the tax portion alone would suffice to maintain the appeal under Section 39 of the KGST Act. The petitioner, a Managing Partner of a firm, had an assessment order finalized under Section 17D, with a tax liability of Rs. 2,55,111 and interest due of Rs. 1,53,067 for the assessment year 2004-05. The petitioner claimed to have satisfied the tax amount and more, as evidenced by proceedings issued by revenue authorities. However, the appeal filed by the petitioner was noted as defective by the Tribunal, requiring further proof of payment of entire arrears.

The petitioner argued that the statutory requirement was to satisfy only the tax amount and not interest or any other sum. On the other hand, the Government Pleader contended that challenging proceedings finalized under Section 17D required the entire amount due to be deposited, emphasizing the need for finality in the process. The Court examined Section 17D(5) which mandated that no appeal shall lie unless the dealer has paid the entire tax amount. The question arose whether the tax amount included the interest portion as well.

The Court referred to a decision highlighting that the "tax payable" or "tax due" is the amount due on the turnover and taxable turnover shown in the return or based on the assessment order. It was noted that the provision did not suggest including the interest portion in the tax amount. The Court found the petitioner's contention valid, as the tax amount specified in the order had been satisfied by the petitioner, and there was no indication that the tax amount remained unpaid except for the interest portion. Consequently, the Court set aside the rejection of the appeal by the Tribunal, directing it to consider the appeal on merits and pass appropriate orders promptly.

In conclusion, the writ petition was allowed without costs, emphasizing that the petitioner had fulfilled the requirement of paying the tax amount as stipulated under Section 17D(5) to challenge the assessment order on appeal.