2014 (9) TMI 744 - HC - VAT and Sales Tax

Addition in turn over - Penalty - Dismissal of appeal for non compliance with pre deposit order - Held that - When the appeal before the learned tribunal was against the order passed by the first appellate authority dismissing the appeal on nondeposit of pre-deposit and all through out the learned advocate appearing on behalf of the appellant requested the learned tribunal to remand the matter to the first appellate authority and more particularly when as per the order passed by the tribunal, the appellant deposited the entire amount of pre-deposit i.e. ₹ 1,05,400/- and as first appeal preferred by the appellant for the earlier assessment year was pending before the first appellate authority, in the facts and circumstances of the case, more particularly when as such the learned tribunal has remanded the appeal to the first appellate authority to the extent of penalty and addition made by the Assessing Officer, we are of the opinion that the impugned judgement and order passed by the learned tribunal dismissing the appeal with respect to duty deserves to be quashed and set aside and the matter is required to be remanded to the first appellate authority on all the grounds rather than restricting the remand to the extent of penalty and addition made by the Assessing Officer only - Decided in favour of assessee.

Summary

Issues:
1. Appeal against judgment and order of Gujarat Value Added Tax Tribunal
2. Dismissal of appeal by first appellate authority due to non-compliance of pre-deposit
3. Request for waiver of pre-deposit
4. Remand of the matter to first appellate authority
5. Quashing and setting aside of the impugned judgment and order
6. Directions to first appellate authority for fresh decision on total tax liability, addition in turnover, and penalty

Issue 1: Appeal against judgment and order of Gujarat Value Added Tax Tribunal

The Tax Appeal was filed by the appellant, challenging the judgment and order passed by the Gujarat Value Added Tax Tribunal. The Tribunal had partly allowed the appeal, remanding the matter to the first appellate authority by quashing and setting aside the orders related to addition in turnover and penalty. The Tribunal directed the first appellate authority to decide on the penalty and addition issues after hearing the appellant afresh.

Issue 2: Dismissal of appeal by first appellate authority due to non-compliance of pre-deposit

The appellant, dissatisfied with the Assessment Order, appealed before the first appellate authority but did not comply with the pre-deposit order. Consequently, the appeal was dismissed for non-compliance of the pre-deposit order. The appellant then appealed to the Tribunal against this dismissal.

Issue 3: Request for waiver of pre-deposit

The appellant submitted an application for waiver of pre-deposit, stating that a partial amount had been deposited and further funds were recovered by the department. The Tribunal directed the appellant to pay the remaining balance as pre-deposit, which was complied with by the appellant before the appeal hearing.

Issue 4: Remand of the matter to first appellate authority

Despite the appellant's request to remand the matter to the first appellate authority due to pending appeals for the earlier assessment year, the Tribunal delved into the case's merits. The High Court opined that the matter should be remanded to the first appellate authority on all grounds, not just limited to penalty and addition issues.

Issue 5: Quashing and setting aside of the impugned judgment and order

The High Court quashed and set aside the Tribunal's judgment, disagreeing with the dismissal of the appeal with respect to duty. The matter was remanded to the first appellate authority for a fresh decision on all issues, including total tax liability, addition in turnover, and penalty.

Issue 6: Directions to first appellate authority for fresh decision on total tax liability, addition in turnover, and penalty

The High Court directed the first appellate authority to decide all issues, including total tax liability, addition in turnover, and penalty, after hearing the appellant afresh. The first appellate authority was instructed to complete this process within six months from the date of receipt of the order.

This comprehensive analysis covers the various issues involved in the legal judgment, detailing the sequence of events, appeals, orders, and directions provided by the High Court in response to the appellant's challenges and requests.