2014 (1) TMI 674 - HC - VAT and Sales Tax

Maintainability of appeal u/s 78 - Held that - it is required to be noted that what was challenged before the learned Tribunal was the order passed by the Commissioner in exercise of suo motu revisional powers under Section 75 (1)(a) of the Act. The Commissioner did not exercise the revisional powers on any application and as stated above exercise the suo motu revisional powers. Under the circumstances considering Section 75(1)(b) of the Act against the order passed by the Commissioner passed in exercise of suo motu revisional powers only revision application before the learned Appellate Tribunal was maintainable and therefore, as such the learned Appellate Tribunal rightly entertained the revision applications and has rightly passed the impugned judgment and order in exercise of the revisional jurisdiction. That being so considering Section 78(1) of the Act and as the impugned order passed by the learned Appellate Tribunal is passed in revision applications shall not in appeal and therefore, Tax Appeal before this Court under Section 78(1) of the Act would not be maintainable. Considering Section 78(1) of the Act an appeal shall lie to the High Court from every order passed in Appeal by the Tribunal. In view of the above, it is held that the present appeals preferred under Section 78(1) of the Act would not be maintainable - Decided against Revenue.

Summary

Issues:
Challenging judgment of Gujarat Value Added Tax Tribunal under Section 78 of the Gujarat Value Added Tax Act, 2003; Maintainability of appeal under Section 78; Interpretation of revision applications as appeals; Exercise of suo motu revisional powers by Commissioner; Jurisdiction of Appellate Tribunal; Dismissal of appeals as not maintainable; Option to file Special Civil Application under Article 226/227.

Analysis:

The State of Gujarat filed Tax Appeals under Section 78 of the Gujarat Value Added Tax Act, 2003, challenging the judgment of the Gujarat Value Added Tax Tribunal. The respondent raised a preliminary objection regarding the maintainability of the appeal under Section 78, arguing that the Tribunal's judgment was passed in revision applications under Section 74, making it non-appealable. The respondent contended that only orders passed in appeal by the Tribunal involving substantial questions of law are appealable under Section 78.

The Assistant Government Pleader argued that despite the Tribunal labeling the applications as revision, they should be considered as appeals under Section 73(1) of the Act. The Commissioner had exercised suo motu revisional powers under Section 75(1)(a) without any application, making the revision applications before the Tribunal maintainable. The Tribunal rightly entertained the revision applications and passed the impugned judgment within its revisional jurisdiction.

The Court analyzed the provisions of Section 78(1) of the Act, which allow appeals to the High Court from orders passed in appeal by the Tribunal. Since the impugned order was passed in revision applications and not in appeal, the Tax Appeals under Section 78(1) were deemed not maintainable. Consequently, all the appeals were dismissed as not maintainable, but the appellants were given the option to file a Special Civil Application under Article 226/227 of the Constitution of India for further consideration.

In conclusion, the appeals challenging the Tribunal's judgment were dismissed as not maintainable due to the nature of the orders passed by the Commissioner and the Tribunal. The parties were granted the opportunity to pursue alternative legal remedies through Special Civil Applications under Article 226/227.