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TMI Blog2015 (5) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... st Appellate Authority dismissing the appeal not on merits but on non deposit of amount of predeposit, the State has preferred present Tax Appeal No. 148 of 2015 to consider the following questions of law and mainly to consider the substantial question of law that whether the learned Tribunal has erred in deciding the appeal on merits despite the fact that First Appellate Authority dismissed the appeal for failure to deposit the predeposit. 1.Whether the Hon'ble Tribunal has erred in deciding the appeal on merits despite the fact that the first appellate authority dismissed the appeal for failure to deposit the predeposit ? 2.Whether the Hon'ble Tribunal erred in holding that the assessment orders are without application of mind and without appreciating investigating the evidence? 3.Whether the Hon'ble Tribunal erred in quashing the assessment order instead of remanding the assessment back to the file of the assessing officer? 4.Whether the Hon'ble Tribunal erred in deleting the levy of penalty under Section 34(7) and 34(12), Gujarat Value Added Tax Act, 2003 are inevitable? 5.Whether the Hon'ble Tribunal erred in deleting the interest? 2.1. Feeling aggrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Tribunal has erred in deciding the appeal on merits despite the fact that First Appellate Authority dismissed the appeal for failure to deposit the predeposit. 1.Whether the Hon'ble Tribunal has erred in deciding the appeal on merits despite the fact that the first appellate authority dismissed the appeal for failure to deposit the predeposit ? 2.Whether the Hon'ble Tribunal erred in holding that the assessment orders are without application of mind and without appreciating investigating the evidence? 3.Whether the Hon'ble Tribunal erred in quashing the reassessment order instead of remanding the assessment back to the file of the assessing officer? 4.Whether the Hon'ble Tribunal erred in deleting the levy of penalty under Section 34(12)? 5.Whether the Hon'ble Tribunal erred in deleting the interest? 3.0. Heard Ms. Vacha Desai, learned AGP appearing on behalf of the appellant State and Shri Devan Parikh, learned Senior Advocate appearing with Shri Shail S Shah, learned advocate for the respective opponentsdealerassessee. 4.0. The main grievance which is voiced in the present Tax Appeals is that despite the fact that respective appeals preferred befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of the first appellate authority on merits. The aforesaid is absolutely impermissible. 7. The learned advocates appearing on behalf of the respective parties have brought to our notice number of decisions of this Court quashing and setting aside similar orders passed by the learned tribunal by which in appeal against the order passed by the first appellate authority dismissing the appeal on non deposit of predeposit, the learned tribunal entered into the merits of the case and decided the appeal. 7.1 In Tax Appeal No.711/2013 in the case of State of Gujarat Vs. Tudor India Ltd. as such the Division Bench of this Court deprecated such practice of the learned tribunal in deciding the appeal on merits when the appeal before the learned tribunal was against the order passed by the first appellate authority dismissing the appeal on non deposit of the amount of predeposit. In paragraph nos.7 to 8.4 the Division bench has observed and held as under; "7. As we have noticed in number of matters, this unacceptable trend of deciding the appeals on merit, even when the first appellate authority has rejected the case of assessee on the ground of pre deposit, instead of considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am Co. Health C. Limited., reported in 2003 [157] ELT 497 (SC), wherein it is observed, thus " 2. This appeal is filed against an order passed by the Customs, Excise & Gold [Control] Appellate Tribunal dated 19th December 2002. The Tribunal was hearing an appeal against an order dated 23rd April 2002 passed by the Commissioner of Central Excise [Appeals]. By that order, the Commissioner [Appeals] had merely dismissed the appeal because pre deposit was not made. The Commissioner [Appeals] had not gone into the merits. Therefore, the only question before the Tribunal was whether pre deposit 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." 8.2It 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. 8.3In view of the discussion held hereinabove, we therefore are of the opinion that this appeal deserves ..... 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