9911796707
TMI Blog2014 (8) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... t and sales outside the State. Some adjustments were done on output tax liability against input tax credit made available to the appellant. Assessment order was passed on 29.3.2011 by the Assessing Officer disallowing certain claims of the appellant for input tax credit on the ground that vendor's registration certificates were cancelled ab initio. He was also held liable to pay certain amount of tax without penalty and interest. 3. First Appeal was preferred before the Deputy Commissioner of Commercial Tax. Deputy Commissioner vide order dated 29.9.2011 dismissed the appeal for non-payment of a sum of Rs. 10 lakh by way of pre-deposit. The tribunal passed the order directing the appellant to pay 20% of the tax amount which would come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts what emerges is, after the order of assessment when the challenge was made before the Deputy Commissioner in the First Appeal, the Deputy Commissioner directed pre-deposit for sum of Rs. 10 lakh. Such order was challenged before the Tribunal by the present appellant. The Tribunal though had directed the appellant to pay 20% of the tax amount making such sum to be Rs. 1.79 lakhs (rounded off) and the same was directed to be paid within a period of 30 days, however, curiously thereafter, without any request from either sides and also without reasonings, the Tribunal also directed the registry to place concerned matter along with the hearing of other group and disposed of the matter on merits. Tribunal thus has chosen to by pass the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry or (c) on the appellant furnishing in the prescribed manner security or such as the appellate authority may direct. 4. In view of section 73(4) of the Act, therefore, such appeal could not have been entertained unless in terms of proviso, the appellate authority for reasons recorded in writing relaxed the requirement of full pre-deposit. In the present case, the Appellate Commissioner exercised such powers and required the appellant to deposit 25% of the amount confirmed by the adjudicating authority. When the appellant failed to fulfill such requirement, his appeal came to be dismissed. It was against this order that the appellant had preferred appeal before the Tribunal. The scope of the appeal before the Tribunal, therefore, had to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner or any requirement of pre-deposit. under section 73(4) of the Act. We cannot lose sight of the fact that the appellant himself also substantially contributed to this complication. In the appeal, his main grounds were against the assessment order. His prayers pertained only to the issues on merits about the additions made by the Assessing Officer. There was no prayer for setting aside the appellate order of imposing condition and subsequently, dismissing his appeal when he failed to fulfill such condition. Even if it were so, the Tribunal could have either permitted the appellant to suitably amend the prayer or if the appellant was not willing to do so, dismiss his appeal as not maintainable. In our opinion, the Tribunal could n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und of predeposit and either side approaches the second appellate authority, there does not arise any question of circumventing the very stage and exercise the powers of first appellate authority. We say so as the Statute provides that even on adjudication of the issue on merit by the first appellate authority, either side is entitled to challenge such reasonings before the second appellate authority. Not only the parties and the second appellate authority would be deprived of the reasonings of the first appellate authority but chance of either sides of availing the opportunity of appeal on merit also gets marred by this process. Even if it is felt by the Tribunal that, the issue is covered by the decision of the higher forum, it can always ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals] had merely dismissed the appeal because predeposit was not made. The Commissioner [Appeals] had not gone into the merits. Therefore, the only question before the Tribunal was whether predeposit was required or not. The Tribunal has chosen to go into the merits and decided the appeal on merits also. This should not have been done. 8.2 It is not the case of either side that an identical question of law was pending before the Tribunal in some other appeals concerning the very assessee, or identical question of law in respect of very assessee for different assessment year was before the Tribunal, and in such circumstances, with the consent of the parties it chose to conclude on me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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