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2024 (6) TMI 753 - HC - VAT and Sales TaxChallenge to assessment order - It is contended that the proprietor of the M/s. P.G. Oil Traders was not aware about the said assessment orders - request for waiver of the condition of pre-deposit of 25% of tax amount not considered -whether appeal filed by the petitioner being aggrieved with the said assessment orders is required to be considered as per the provisions under AGST Act, 1993 or VAT Act, 2003? - non-application of mind - violation of principles of natural justice - HELD THAT - The said question has already been answered by the Division Bench of the Hon ble Supreme Court in Messrs. Hoosein Kasam Dada (India) Ltd. 1953 (2) TMI 35 - SUPREME COURT . The said judgment was later on affirmed by a Constitution Bench of the Hon ble Supreme Court in Garikapati Veeraya 1957 (2) TMI 54 - SUPREME COURT . In Messrs. Hoosein Kasam Dada, the Hon ble Supreme Court has held ' the appellant s appeal should not have been rejected on the ground that it was not accompanied by satisfactory proof of the payment of the assessed tax. As the appellant did not admit that any amount was due by it, it was under the section as it stood previously entitled to file its appeal without depositing any sum of money. We, therefore, allow this appeal and direct that the appeal be admitted by the Commissioner and be decided in accordance with law.' Thus, the appeals filed by the petitioner against the impugned assessment orders are required to be considered under Section 33 of the AGST Act, 1993 instead of Section 79 of the VAT Act, 2003 because lis arose in the matter with filing of returns by the petitioner, i.e. in the year 2002-2004, which is admittedly prior to coming into force of the VAT Act, 2003. Perusal of the order dated 29.07.2013 passed by the respondent No. 3, it is clear that the request made by the petitioner for waiver of the condition of pre-deposit of 25% of disputed amount was not even considered and even the prayer of the petitioner to deposit the 25% of the disputed amount in the form of Bank Guarantee has also been rejected - it is clear that the Assam Board of Revenue has not applied its mind while passing the impugned order dated 16.07.2015. The matter is remanded back to the Appellate Authority to consider and decide the appeal/appeals filed by the petitioner as per the provisions of Section 33 of the AGST Act, 1993 - petition allowed by way of remand.
Issues Involved:
1. Applicability of AGST Act, 1993 vs. VAT Act, 2003. 2. Requirement and waiver of pre-deposit of 25% of the disputed tax amount. 3. Consideration of appeal under Section 33 of the AGST Act, 1993. Detailed Analysis: 1. Applicability of AGST Act, 1993 vs. VAT Act, 2003: The core issue was whether the appeal filed by the petitioner should be considered under the Assam General Sales Tax Act, 1993 (AGST Act, 1993) or the Assam Value Added Tax Act, 2003 (VAT Act, 2003). The petitioner argued that the appeal should be considered under the AGST Act, 1993 since the assessment years in question (2002-2003 and 2003-2004) were prior to the introduction of the VAT Act, 2003. The court agreed, citing the principle that the right of appeal is a substantive right that accrues when the proceedings are initiated. This principle was supported by the Supreme Court's decisions in Messrs. Hoosein Kasam Dada (India) Ltd. vs. The State of Madhya Pradesh & Ors. and Garikapati Veeraya vs. N. Subbiah Choudhury & Ors., which established that a vested right of appeal cannot be taken away unless explicitly stated by law. 2. Requirement and Waiver of Pre-deposit of 25% of the Disputed Tax Amount: The petitioner contested the requirement to deposit 25% of the disputed tax amount as mandated by Section 79(5) of the VAT Act, 2003. The Deputy Commissioner of Taxes (Appeals), Jorhat, dismissed the appeal on the grounds that the petitioner failed to provide proof of this deposit. The Assam Board of Revenue upheld this decision, stating that the deposit is a legal requirement and cannot be waived. However, the petitioner argued that under Section 33 of the AGST Act, 1993, the Appellate Authority has the discretion to waive the pre-deposit requirement to mitigate undue hardship. The court found that the Deputy Commissioner did not consider the petitioner's request for waiver and that the Assam Board of Revenue assumed, without basis, that the request had been considered and denied. 3. Consideration of Appeal under Section 33 of the AGST Act, 1993: The court emphasized that the appeal should be considered under Section 33 of the AGST Act, 1993, which allows for the waiver of the pre-deposit requirement. The relevant provision states that no appeal against an order of assessment shall lie unless accompanied by proof of payment of the admitted tax or 20% of the assessed tax, whichever is higher. However, the Appellate Authority may waive this requirement if it deems fit, to mitigate undue hardship. The court noted that the Deputy Commissioner did not consider the petitioner's request for waiver and rejected the alternative request to deposit the amount in the form of a bank guarantee. The Assam Board of Revenue also failed to apply its mind to this aspect. Conclusion: The court allowed the revision petition, setting aside the orders dated 29.07.2013 by the Deputy Commissioner of Taxes (Appeals) and 16.07.2015 by the Assam Board of Revenue. The matter was remanded back to the Appellate Authority to consider the appeal under Section 33 of the AGST Act, 1993, including the request for waiver of the pre-deposit requirement. The Appellate Authority was directed to decide the appeals expeditiously, preferably within six months, after providing a due opportunity of hearing to the petitioner.
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