2021 (6) TMI 629 - HC - VAT and Sales Tax

Maintainability of appeal - requirement to comply with the pre-deposit of 12.5 per cent of the disputed tax along with the appeal - appellate authority rejected the appeal of the petitioner for want of payment of 12.5 per cent - section 31(1), 31(2) and 31(3)(a) of the A. P. VAT Act - HELD THAT - Any VAT dealer objecting to any order passed or proceeding recorded by any authority under the provisions of the Act other than an order passed by the Additional Commissioner or Joint Commissioner or Deputy Commissioner, may within 30 days from the date on which the order or proceeding was served on him, appeal to such authority as may be prescribed. It is to be noted here that the word used is any order passed and not order of assessment . Hence, the argument of the learned Government Pleader that appeal itself may not lie cannot be accepted - the endorsement made by the Assistant Commissioner on October 18, 2019 can be challenged in an appeal. In fact, the endorsement itself shows that an appeal lies before the ADC (CT), Tirupati against the said endorsement. Payment of 12.5 per cent. of the difference of tax as assessed by the authority prescribed - HELD THAT - It is no doubt true that the proviso categorically states that an appeal shall not be admitted by the appellate authority unless the dealer produced proof of payment of tax admitted to be due and proof of payment of 12.5 per cent. of difference of tax assessed by the authority prescribed and the tax admitted by the appellant for the relevant tax period in respect of which appeal is preferred - Here the appeal does not relate to imposing of tax for the relevant tax period or towards any tax liability or penalty imposed, but for a different purpose where no tax is quantified. Therefore, insisting on payment of 12.5 per cent. of difference of tax may not be proper. Division Bench of this court in SRI HARI MAHARALAYAM COMPANY VERSUS COMMERCIAL TAX OFFICER, LALAPETA CIRCLE AND OTHERS 2019 (9) TMI 1550 - ANDHRA PRADESH HIGH COURT , pre-deposit of the part of the disputed tax is required only when the appeal is filed against the assessment order, and since no tax is quantified under the endorsement, insistence of the authority to pay 12.5 per cent. of the disputed tax as a condition precedent for entertaining the appeal would be incorrect and unsustainable. The impugned orders are set aside directing the first respondent-Appellate Deputy Commissioner (CT), Tirupati to entertain the appeals of the petitioners in all the writ petitions against the endorsements of the 2nd respondent-Assistant Commissioner (ST), Vinukonda Circle, dated October 18, 2019 and deal with the appeals without insisting on payment of 12.5 per cent. of tax in accordance with the law - Petition allowed - decided in favor of appellant.

Summary

Issues involved:
Challenge to rejection of appeal for non-payment of disputed tax amounting to 12.5% under the Central Sales Tax Act.

Analysis:

Issue 1: Rejection of appeal for non-payment of disputed tax
The writ petition was filed challenging the rejection of the appeal by the first respondent for the assessment year 2011-12 under the Central Sales Tax Act. The petitioner, a proprietor of a business, reported a turnover for the year and later requested consideration of H forms due to non-receipt from customers. The Assistant Commissioner rejected the request, leading to an appeal by the petitioner. The appellate authority refused to admit the appeal due to the petitioner's failure to pay 12.5% of the disputed tax. The petitioner argued that the issue was covered by previous court orders. The Government Pleader contended that allowing such appeals would undermine the A. P. VAT Act's provisions. The key question was whether the appellate authority was justified in rejecting the appeal based on the non-payment of the disputed tax amount.

Issue 2: Interpretation of A. P. VAT Act provisions
The court analyzed the relevant sections of the A. P. VAT Act, particularly Section 31, which outlines the appeal process for dealers objecting to any order passed under the Act. The court emphasized that the term "any order" was not limited to assessment orders, allowing challenges to various decisions. The proviso requiring proof of payment of tax and 12.5% of the disputed tax was examined. The court noted that the appeal did not pertain to tax liability or penalties but a request regarding form H, indicating that insisting on the payment of 12.5% of the disputed tax might not be appropriate.

Issue 3: Pre-deposit requirement for appeal
The court considered the necessity of pre-deposit when filing an appeal against an assessment order. Since the appeal did not involve quantified tax liability, the court found the authority's insistence on payment of 12.5% of the disputed tax incorrect. Referring to previous judgments, the court held that such pre-deposit was required only for appeals against assessment orders, not for cases where no tax liability was determined. Consequently, the court allowed the writ petitions, setting aside the impugned orders and directing the appellate authority to entertain the appeals without demanding the 12.5% disputed tax payment.

In conclusion, the court's decision favored the petitioners, emphasizing the correct interpretation of the A. P. VAT Act provisions and the inapplicability of the disputed tax payment requirement in the given circumstances.