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TMI Blog2015 (2) TMI 480X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Respondent : M/s Wadiaghandy Co, Advocate ORDER (Per : Honourable Mr. Justice Akil Kureshi) 1.Notice for final disposal was issued on the premise that a limited question needs to be gone into in this tax appeal. We have considered the following substantial question of law: Whether the Hon'ble Tribunal was right in adjudicating the appeal on merits instead of restricting itself to the issue of predeposit? 2. It is undisputed that the appeal before the Tribunal arose out of the order passed by the first appellate authority on question of prePage deposit. The Tribunal, in the impugned judgement, instead of deciding such issue, considered the questions on merits and substantially allowed the assessee's app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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. 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 predeposit. 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndition of part predeposit on the appellant, the Tribunal accepted the appellant's Second Appeal as if there was no intermediary stage of the appeal before the Appellate Commissioner or any requirement of predeposit 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 per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooses not to comply with the requirement of making predeposit or contest the matter on the ground 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals]. By that order, the Commissioner [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 merit. 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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