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TMI Blog2016 (6) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... he tax demands in excess of Rs. 5 crores. The assessee challenged such orders before the appellate Commissioner. At one stage, the appellate authority had dismissed the appeals upon which the Tribunal by order dated 17.1.2008 reversed the orders and placed the proceedings before the appellate Commissioner for fresh consideration and disposal in accordance with law, further providing that there shall be stay against recovery of the outstanding dues, till the appellate authority decide the appeals. However, in case of failure, the assessee would be liable to pay interest at the rate of 18%. 4. On 17.6.2010, the appellate Commissioner dismissed the appeals once again on the ground that the assessee had failed to appear, though sufficient opportunities were given. The assessee thereupon preferred four separate appeals before the Tribunal. Pending such appeals, the assessee prayed for waiver of predeposit in terms of section 73 of the Value Added Tax Act. The assessee urged that it is a sick industrial unit and has presented the scheme before the Board for Industrial & Financial Reconstruction ("BIFR" for short) and such scheme was under contemplation by BIFR. The Tribunal by order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ionary in nature. The Tribunal has given valid reasons for the same. In terms of subsection (4) of section 73 of the VAT Act, appeals would not be maintainable unless such condition of predeposit is satisfied. 8. Section 73 of the VAT Act pertains to appeal. In terms of subsection (1) of section 73, an appeal from every original order is available to the appellate authority prescribed therein. Under subsection (2) of section 73, in certain cases, against the order passed by the first appellate authority, there would be a second appeal. Subsection (4) of section 73 however, provides that no appeal against an order of assessment shall ordinarily be entertained by an appellate authority, unless the appeal is accompanied by proof of payment of tax. Proviso to subsection (4) however, empowers the appellate authority for reasons to be recorded in writing to waive such predeposit requirement partially or totally. Section 22 of SICA, as is well known, pertains to suspension of legal proceedings. Subsection (1) of section 22 reads as under : "22. Suspension of legal proceedings, contracts, etc. (1) Where in respect of an industrial company, an inquiry under section 16 is pending or any sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 73(4) of the VAT Act stand waived or suspended? 10.We have noticed that section 73 of the VAT Act pertains to appeal. Appeal is available under subsection (1) of section 73 before the authorities mentioned in clauses (a) to (c) therein. Subsection (4) of section 73 pertains to requirement of depositing the tax in connection with appeal presented by a party. Proviso to subsection (4) of section 73 authorises the appellate authority to partially or fully waive this requirement of predeposit. In terms of section 73 and in particular subsection (4) thereof, an appeal from the original order would lie subject to certain conditions. It is by now well settled that the appeal is creation of statute and right to appeal can be restricted through a statutory provision. Right of appeal under subsection (1) of section 73 is thus conditional upon the appellant assessee either satisfying the requirement of predeposit of the tax or having such requirement waived by the appellate authority in terms of proviso to subsection (4) of section 73. In essence, thus the requirement of predeposit envisaged under section 73 with possibility of partial or total waiver would not fall within the scope of subse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the regulation issued under the Indian Electricity supply Act. Execution connotes preexisting decree. It is true that any action for realisation etc. Pending decision by BIFR or without its permission is prohibited. Enforcement or compliance of the obligation under the contract or regulation for supply of electrical energy by ordering payment of electrical energy is not and cannot be considered to be execution of decree. Execution of the decree presupposes existence of a decree of a competent Court and the decreeholder should take steps to have it executed pending proceeding before or leaf BIFR. There is no decree of court. since the petitioner had committed default and as a condition for reconnection, agreed to pay the amount in instalments, he is liable to comply with the undertaking given for supply of electrical energy. the petitioner committed default in that behalf. so, it is not entitled to seek any declaration or direction from the Court that since the matter is pending before the BIFR, he would be untitled to the supply of electrical energy without the compliance of the corresponding obligation of payment under regulations or of the contract under the Indian Electricity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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