2014 (1) TMI 1612 - HC - VAT and Sales Tax

Maintainability of appeal - Whether against the impugned judgment and order passed by the learned Appellate Tribunal in revision application, in exercise of powers under section 75 of the Act, present appeal before this Court under section 78 of the Act would be maintainable or not - Held that - 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:
1. Maintainability of appeal under section 78 of the Gujarat Value Added Tax Act, 2003 against the judgment and order passed by the Gujarat Value Added Tax Tribunal.

Analysis:
The High Court of Gujarat deliberated on the issue of the maintainability of an appeal under section 78 of the Gujarat Value Added Tax Act, 2003, against the judgment and order passed by the Gujarat Value Added Tax Tribunal. The Court examined whether such an appeal would be maintainable when the Tribunal had passed an order in a revision application 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 a 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, it provided the appellant with the option to seek recourse to law by 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, legality, or validity of the impugned judgment and order passed by the Tribunal. The Court highlighted that any future proceedings initiated by the appellant would be considered in accordance with the law and on merits. The Court disposed of the present tax appeal as not maintainable but granted the appellant the liberty to pursue legal remedies through a Special Civil Application under the Constitution of India.

Additionally, in light of the disposal of the main tax appeal, another related matter, OJCA No.707 of 2013, was also dismissed and disposed of accordingly by the Court.