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TMI Blog2015 (2) TMI 838X X X X Extracts X X X X X X X X Extracts X X X X ..... g considered by this common order. 2. All the appeals have been preferred by the Revenue, wherein the common question formulated and rather maintained by the learned AGP is as under:- Whether the Tribunal has erred in deciding the appeals on merits, despite the fact that the first Appellate Authority dismissed the appeals for failure to deposit the predeposit? 3. We have heard Mr.Trivedi as well as Mr.Dave, learned AGPs appearing for the appellant in the respective matters. We have also heard Mr.Devan Parikh, learned Counsel with Mr.Shalin Shah and Mr.Mohit Banker, learned Counsel appearing for the Assessee(s) in the respective matters. 4. The learned Counsel appearing for both the sides have brought to our notice the recent order passed by this Court in Tax Appeal No.1320 of 2014 and allied matters decided on 4.2.2015, whereby similar question had arisen for consideration in the those appeals. 5. We may record that in Tax Appeal No.1320 of 2014 and allied matters decided on 4.2.2015, this Court passed the following orders:- 1. The present appeal has been preferred by the Revenue on the four questions of law mentioned at paragraph No.5. However, in our view, onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal, instead of considering the aspect of predeposit, touched the merits of the appeal and rendered the decision, which is impugned in the present appeal. 9. The learned Counsel appearing for both the sides are on agreement on the point that both the present appeals are covered by the decision of this Court dated 11.12.20134 in Tax Appeal No.1317 of 2014, wherein this Court has ruled that in a matter where the appeal is preferred before the appellate Authority, wherein the condition of predeposit was not complied with, it is obligatory for the Tribunal to decide the aspect of pre-deposit and thereafter if such condition is complied with, the matter may be remanded to the First Appellate Authority, but the Tribunal without considering the said aspect should not consider the merits of the appeal for liability of tax, penalty, interest, etc. 10. At this stage, we may refer to the decision of this Court dated 11.12.2014 in Tax Appeal No.1317 of 2014, the same reads as under: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' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 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 be limited to the question of finding out whether the order passed by the Commissioner insisting on the appellant depositing certain amount by way of predeposit was valid or not and resultantly, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal at the such juncture, in our opinion, is not a desirable approach. We may not choose to interfere in all such cases where the Tribunal has straightway chosen to decide the matter on merit instead of determining issue of predeposit which was at large before it. However, so as to ensure that a dent is made in such practice followed consistently that we have chosen to remand this matter. Once, when assessee chooses 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 by the Tribunal that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not permitting any such short circuiting of the process at any stage. We have chosen not to enter the arena of merit of the case at all as is apparent from the discussion held hereinabove. 8. The learned Assistant Government Pleader Mr.Jaimin Gandhi, however, relied on the judgment dated September 12, 2013 rendered by the Division Bench of this Court in Tax Appeal No.667 of 2013 and connected appeals, in which when the Tribunal had under similar circumstances entertained the appeal of the assessee on merits, but dismissed it, the Court held that the appellant cannot raise the ground of impropriety on the part of the Tribunal merely because he has lost in appeal on merits. In the present case, however, we have suo motu taken such an objection against the decision of the Tribunal and in fact, the appellant had partially succeeded before the Tribunal. 9. In the circumstances, the order dated April 29, 2013 passed by the Gujarat Value Added Tax Appellate Tribunal at Ahmedabad is quashed. The appeal be placed back before the Tribunal for fresh consideration and disposal in accordance with law bearing in mind the observations made above. It would be open for the appellant to amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of predeposit, instead of considering the request of deposit of predeposit, such determination of the entire appeal by the Tribunal at the such juncture, in our opinion, is not a desirable approach. 7. As the Tribunal is not a party impleaded in the present proceedings, we leave it at that and find it proper not to make any further observations at this stage. However, we find that the attention of the Tribunal deserves to be drawn to the aforesaid observations and various decisions of this Court observing that the Tribunal was required to examine the aspect of condition of predeposit and ought not to have decided the appeal on merits. Therefore, the Office shall forward the copy of the order to the Registrar of the Tribunal with the observation that copy of the order in the present matter shall be communicated by him to each member of the Tribunal including President of the Tribunal for further consideration in accordance with law. 8. The appeal is allowed to the aforesaid extent. No order as to costs. 6. The learned Counsel for both the sides concede that the fact situation in the present matters are the same as they were in the above referred matters and a large numbe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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