2014 (1) TMI 1560 - 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 - Following decision of State of Gujarat v. Shakti Containers 2014 (1) TMI 674 - GUJARAT HIGH COURT - Decided against Revenue.

Summary

Issues:
1. Maintainability of the tax appeal under section 78 of the Gujarat Value Added Tax Act, 2003 against the impugned judgment and order passed by the Gujarat Value Added Tax Tribunal.

Analysis:
The High Court of Gujarat examined the issue of maintainability of a tax appeal under section 78 of the Gujarat Value Added Tax Act, 2003 against the judgment and order of the Gujarat Value Added Tax Tribunal. The Court considered whether such an appeal would be maintainable when the Tribunal had passed the order in exercise of powers under section 75 of the Act. The Court referred to a previous decision in Tax Appeal No. 938/2013 where it was held that an appeal under section 78 of the Act would not be maintainable against an order passed by the Tribunal in revision application under section 75(1)(b) of the Act. The Court emphasized that the Commissioner had exercised suo motu revisional powers under section 75(1)(a) of the Act, and as such, only a revision application before the Appellate Tribunal was maintainable. Therefore, the Court concluded that a tax appeal under section 78 of the Act would not be maintainable in such circumstances.

The Court dismissed the present appeal as not maintainable based on the above analysis. However, the Court noted that the appellant could explore other legal avenues, such as filing a Special Civil Application under Article 226/227 of the Constitution of India against the impugned judgment and order. The Court clarified that it had not delved into the merits or legality of the case and had not expressed any opinion on the same. The judgment highlighted that any future proceedings initiated by the appellant would be considered in accordance with the law and on their merits. Ultimately, the Court disposed of the tax appeal as not maintainable but granted the appellant the liberty to pursue alternative legal remedies as deemed appropriate.