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TMI Blog2014 (8) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... dded Tax Act, 2003, requires that no appeal against the order of assessment shall ordinarily be entertained by the Appellate Commissioner, unless such appeal is accompanied by proof of payment of tax in respect of which the appeal has been preferred. Proviso to section 73(4), however, provides that the appellate authority may, if it thinks fit, for reasons to be recorded in writing, entertain an appeal against such order (a) without payment of tax, interest, if any or as the case may be, of the penalty, or (b) on proof of payment of such small sum as it may consider necessary or (c) on the appellant furnishing in the prescribed manner security or such as the appellate authority may direct. In view of section 73(4) of the Act, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are as under : 3.1. The appellant is a dealer registered under the VAT Act as well as the Central Sales Tax Act. For the year 2009-2010, the Assessing Officer passed an order of assessment on 18.2.2010 raising additional tax demand of ₹ 12.44 lakhs(rounded off) under the VAT Act and ₹ 2 lakhs(rounded off) under the CST Act with interest and penalties. The total demand thus was ₹ 68.37 lakhs(rounded off) under the VAT Act and ₹ 6.54 lakhs (rounded off) under the CST Act. 3.2. Against such order, he preferred appeal before the Commissioner. The Commissioner insisted that appellant must deposit 20% of the total demand by way of pre-deposit subject to which the rest of the demand would be stayed and appeal would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed such an order, modified or even wholly set aside for appropriate reasons. In any case, tribunal could not have proceeded to hear the appeal as if it were a direct first appeal against the order of Assessing Officer totally bypassing the statutory first appellate authority. 5. In a judgement dated 30.1.2014 passed in Tax Appeal No.688/2013, we had made the following observations : 3. We are of the opinion that the Tribunal committed serious error in examining the appellants grievances on the merits of the order of assessment. The order of assessment was passed by the adjudicating authority, which was appellable by way of first appeal before the Appellate Commissioner. Section 73(4) of the Gujarat Value Added Tax Act, 2003, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ltantly, his decision to reject such an appeal for noncompliance with such requirement was correct or not. 5. Unless and until the answers were given to such questions, the appellants first appeal before the appellate authority was simply not maintainable and could not have been entertained. If that be so, the Tribunal could not have entered into merits and in the appeal before itself and given a judgment on the validity of the order of assessment. In the process, the Tribunal jettisoned the first appeal before the Appellate Commissioner and also waived the requirement of predeposit without passing any order to that effect. If the Tribunal was of the opinion that the condition imposed by the Appellate Commissioner was too onerous to be f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that this is not an isolated case, where such order has been passed. This Court has come across such orders of the Tribunal on more than one occasion. 6. in the result, impugned judgement of the tribunal is reversed. In other words, all directions are quashed. The sole question now remains is of the validity of the condition imposed by the Commissioner. We have perused the order passed by the Assessing Officer. In facts of the case, we do not find that the Commissioner committed any serious error in imposing the condition of pre-deposit. It would however, be open for the appellant to satisfy such condition even now for which purpose time is granted upto 31.8.2014. If so done, the Commissioner shall hear the appeals on merits. We an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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