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TMI Blog2016 (4) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... (Annexure "B" to the petition). 3. By an assessment order dated 23.03.2015 in respect of assessment year 2010-11, the first respondent assessed the total liability of the petitioner for Value Added Tax for sale of Maggi Noodles of Rs. 32,17,740/- plus interest and penalty at Rs. 61,78,061/-. Being aggrieved, the petitioner went in appeal before the Joint Commissioner of Commercial Tax, Appeal Division-2, Ahmedabad, in Appeal No.40/15-16 under section 73 of the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as "the GVAT Act"). Together with the appeal, the petitioner also moved an application seeking waiver of payment of tax for the purpose of entertaining the appeal. The petitioner also applied to the Commercial Tax Officer, Unit 22 on 11.05.2015 not to effect coercive recovery pursuant to the order dated 23.03.2015. The petitioner submitted an application dated 10.08.2015 to the Joint Commercial Tax Commissioner, Appeal -2 seeking total relief in the tax, interest and penalty charges as well as an application 08.09.2015 to the said Joint Commissioner of Commercial Tax requesting him to entertain the appeal of the petitioner without requiring the petitioner to make any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the circumstances, the first appellate authority ought not to have dismissed the appeal on the ground that the petitioner had not remained present in view of the fact that the issue being squarely covered by the decision of this court, the petitioner was entitled to a total waiver of payment of tax and penalty for the purpose of entertaining the appeal. It was submitted that the first appellate authority having passed the impugned order by disregarding the above referred decision of this court, the same is required to be quashed and set aside and that the appeal is required to be restored with a direction to the appellate authority to entertain the appeal and decide the same without payment of any pre-deposit. The learned counsel submitted that in the light of the fact that the petitioner ought to have availed of an alternative remedy before the first appellate authority, the petitioner does not insist for quashing and setting aside the order impugned in the appeal. 5. Opposing the petition, Mr. Swapneshwar Goutam, learned Assistant Government Pleader for the respondents submitted that against the order passed by the first appellate authority, the petitioner has an efficacio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders made by the Deputy Commissioner of Commercial Tax and that despite a plea having been raised by the learned Assistant Government Pleader that the petitions against the assessment orders should not be entertained, the court had, after giving detailed reasons, entertained the petitions and decided the same. It was submitted that having regard to the facts and circumstances of this case, there is no warrant for relegating the petitioner to avail of the alternative remedy. 7. The facts are not in dispute. Against the order dated 23.03.2015 passed by the Deputy Commissioner of Commercial Tax, the petitioner went in appeal under section 73 of the GVAT Act before first appellate authority. Before the first appellate authority, the petitioner moved application seeking waiver of payment of tax for the purpose of entertaining the appeal and placed reliance upon an interim order passed by this court in the case of Nestle India Limited v. Deputy Commissioner of Commercial Tax. Subsequently, during the pendency of the application, by a judgment and order dated 07.05.2015, this court finally decided the case of Nestle India Limited v. Deputy Commissioner of Commercial Tax and another, pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Nestle India Limited v. Deputy Commissioner of Commercial Tax and another (supra), which clearly decided the controversy involved in the case in favour of the petitioner was brought to its notice, the first appellate authority has ignored the application for waiver of pre-deposit made by the petitioner and has dismissed the appeal on the ground that the petitioner has neither remained present before the authority, nor deposited the amount under the assessment order. 9. At this juncture, reference may be made to the provision of sub-section (4) of section 73 of the GVAT Act which provides that no appeal against an order of assessment shall ordinarily be entertained by an appellate authority, unless such appeal is accompanied by satisfactory proof of payment of the tax in respect of which an appeal has been preferred; provided that an 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 with penalty (if any) or, as the case may be, of the penalty, or (b) on proof of payment of such smaller sum as it may consider reasonable, or (c) on the appellant furnishing in the prescribed ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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