APPEAL TO APPELLATE TRIBUNAL AND HIGH COURT UNDER TAMIL NADU VALUE ADDED TAX, 2006

[Mr. M. GOVINDARAJAN]

Appellate Tribunal:

The Government shall constitute an Appellate Tribunal consisting a Chairman and two other members to exercise the functions conferred on the Appellate Tribunal by or under this Act. The Chairman shall be a judicial officer not below the rank of District Judge and other two members shall possess such qualifications as prescribed.   The Government may from time to time appoint such number of persons to be additional members of the Appellate Tribunal as deem necessary and for such period as may be specified in this behalf. 50% of such additional members shall be judicial officers not below the rank of Subordinate Judge and remaining additional members shall possess such qualifications as prescribed.

The functions of the Appellate Tribunal may be exercised-

• By a bench consisting of three members constituted by the Chairman; or
• By a bench consisting of two members constituted by the Chairman;
• By a single member of the appellate tribunal nominated in this behalf by the Chairman, in cases where the disputed turnover as determined by the assessing authority does not exceed Rs. 1 lakh. The single member may be either the Chairman or any other member.

Where an appeal is heard by a bench consisting of three members and the members differ in opinion on any point, the point shall be decided in accordance with the opinion of the majority.

Where no appeal is heard by a bench consisting of two members, and the members are divided in the opinion on any point, the point shall be referred for decision to a Bench consisting of three members, of whom one shall be the Chairman.

The Appellate Tribunal shall, with the previous sanction of the government, make by notification, regulations consistent with the provisions of this Act and the rules made there under for regulating the constitution and the procedure and disposal of its business.

Appeal Procedure:

• The aggrieved party objecting to an order passed by-

• The Appellate Assistant Commissioner;
• The Appellate Deputy Commissioner;
• Order passed by the Deputy Commissioner by the Special powers vested on him

           may file an appeal before the Appellate Tribunal in Form 2;

• Appeal shall be filed any officer prescribed by the Government within a period of 180 days;
• Appeal shall be filed by any person within a period of 60 days from the date on which the order was served, appeal against such order to the Tribunal;
• The Tribunal may admit an appeal presented after the limitation period if it is satisfied that the appellant had sufficient cause for not presenting the appeal within the limitation period;
• The appeal shall be in quadruplicate and shall be accompanied by four copies of the order appealed against, one of which shall be a certified copy and also four copies of the order of the assessing authority;
• The appeal shall be accompanied by a treasury receipt or a money receipt issued by the department or crossed demand draft or pay order of a bank in support of having paid the fee calculated at the rate of 2% of the disputed tax and penalty subject to a minimum of Rs.500/- and a maximum of Rs.2000/-  No fee shall be payable if the appeal is filed by the department;
• No appeal shall be entertained unless it is accompanied by satisfactory proof of the payment of the tax admitted by the appellant to be due or of such installments thereof as might have become payable, as the case may be, and 25% of the difference of the tax ordered by the Deputy Commissioner under his special powers;
• No appeal shall be entertained unless it is accompanied by satisfactory proof of the payment of the tax as ordered by the Appellate Assistant Commissioner or by the Appellate Deputy Commissioner, as the case may be;
• No appeal shall be admitted against an order setting aside the assessment and directing the assessing authority to make a fresh assessment;
• The other party to the appeal may file within 60 days from the date of receipt of the notice, a memorandum of cross objections in Form AA;
• The Appellate Tribunal may, within a further period of 30 days, admit a memorandum of cross objections filed after the expiration of the limitation period, if it is satisfied  that the other party had sufficient cause for not filing the memorandum of objection within the period prescribed;
• In disposing of an appeal, the Appellate Tribunal may, after giving the appellant a reasonable opportunity of being heard, and for sufficient reasons to be recorded in writing-

• In the case of an order of assessment-
• Confirm, reduce, enhance or annul the assessment or the penalty or both;
• Set aside the assessment and direct the assessing authority to make a fresh assessment after such further enquiry as may be directed; or
• Pass such other orders as he may think fit.

• In the case of any other order, confirm, cancel or vary such order.

The Appellate Tribunal, in its discretion, give such directions as he thinks fit in regard to the payment of the tax before the disposal of the appeal, if the appellant furnishes sufficient security to his satisfaction, in such form and in such manner as may be prescribed;

• Except as provided in the rules made under this Act, the Appellate Tribunal shall not have power to award costs to either party to the appeal or review.

Deferring of appeal by Tribunal:

If an appeal involves a question of law on which the Appellate Tribunal has previously given its decision in another appeal and either a revision petition in the High Court against such decision or an appeal to the Supreme Court against the order of the High Court is pending, the Appellate Tribunal may defer the hearing of the appeal before it, till such revision petition in the High Court or the appeal in the Supreme Court is disposed of.

Filing of enhancement petition etc., before the Tribunal:

Within a period of 60 days from the date of receipt of notice that an appeal against the order passed by the Appellate Assistant Commissioner or an order passed by the Appellate Deputy Commissioner or an order passed by Deputy Commissioner under his special powers, any assessing authority or his representative appearing before the appellate tribunal may file an enhancement petition or a petition for restoration of the assessment or penalty or both, fully or partially, as the case may be, in the Form CC in quadruplicate accompanying with four copies of the order against which it is filed, one of which shall be a certified copy.   The Appellate Tribunal may admit the above said petition presented after the expiration of the prescribed period, if it is satisfied that the assessing authority or his representative had sufficient cause for not filing such petition within such period.   The Appellate Tribunal after giving a reasonable opportunity to the appellant and assessing authority or the representative of the assessing authority ofbeing heard pass such orders on the petition as he thinks fit.

Power to transfer appeals:

The Chairman of the Appellate Tribunal may, either suo motu or on application, for reasons to be recorded in writing, transfer an appeal pending before an Appellate Deputy Commissioner to another appellate Deputy Commissioner and an appeal pending before an Appellate Assistant Commissioner to another Assistant Appellate Commissioner.

The Chairman of the Appellate Tribunal may, while exercising this power direct the stay of further proceedings before an Appellate Deputy Commissioner or the Appellate Assistant Commissioner, as the case may be.

No order adversely affecting a person shall be passed unless that person has had an opportunity of being heard.

APPEAL TO HIGH COURT:

• Any person objecting to an order passed by the Joint Commissioner by virtue of his special powers vested by Section 55 may file an appeal against the order of Joint Commissioner within a period of 90 days before the High Court;
• The appeal shall be in the Form DD and shall be verified in the prescribed manner;
• Every appeal preferred to the High Court shall be heard by a Bench of not less than two judges and in respect of such appeal the provisions of Sec. 98 of CPC shall, so far as may be, apply;
• In disposing of the appeal, the High Court may, after giving the appellant, a reasonable opportunity of being heard-

• In the case of an order of assessment-
• Confirm, reduce, enhance or annul the assessment or penalty or both; or
• Set aside the assessment and direct the assessing authority, to make a fresh assessment after such further inquiry as may be directed; or
• Pass such order as it may think fit; or
• in the case of any other order confirm, cancel or vary such order.

• At the hearing of any appeal, the assessing authority shall have the right to be heard either in person or by a representative;
• Every order passed in appeal before the High Court shall be final.