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TMI Blog2016 (8) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... ke recourse to a public auction of the property of the Company by way of issuing a public advertisement. A bid was invited for the purpose of purchase of movable and immovable assets of M/s. Arunoday Mills Ltd., on"as is where is and whatever there is basis". The respondent herein was found to be the highest bidder whose bid came to be accepted and the property of the Company was sold to the respondent herein by executing a deed of sale on 12.07.2007. The terms and conditions of the sale came to be provided by IDBI Bank vide its letter dated 08.02.2007. The case of the appellant - State is that for the financial year 2005-06 in the case of M/s. Arunoday Mills Ltd., the Assessing Officer had framed an assessment and a demand of Rs.1,16,30,773/- came to be raised vide order dated 30.11.2008. The said assessment order was challenged by the respondent herein as it has stepped into the shoes of M/s. Arunoday Mills Ltd., qua the property before the first appellate authority and the first appellate authority without entering into merits of the case vide order dated 29.04.2009 was pleased to dismiss the appeal only on the ground of predeposit requirement having not been satisfied. It appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of predeposit and in the case on hand, the learned Tribunal has dealt with the Second Appeal on merit and, therefore, has contended that it has travelled beyond the scope of jurisdiction. The learned AGP for the appellant - State has submitted that it is a settled proposition of law propounded by series of decisions that if the first appellate authority has dismissed the appeal on the issue of predeposit, the merit of case is not to be examined at all. It has also been contended that qua the merit of the main appeal, no effective adjudication has taken place inasmuch as no proper opportunity to deal with the merit was given, but in essence, the learned AGP for appellant - State has submitted that the learned Tribunal ought not to have proceeded with the merit of the case. While substantiating this submission, the learned AGP for appellant - State has relied upon the decision of this Court delivered by the Division Bench of this Court in Tax Appeal No. 711 of 2013 dated 30.08.2013 in the case of State of Gujarat v. Tudor India Ltd., wherein, it has been specifically held that if the Tribunal is confronted with the situation whereby the issue with respect to nonpayment predeposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... predeposit amount while entertaining the appeal. Keeping this provision in mind, if we revert back to the case on hand, we may see that the appellate authority has under an order dated 29.04.2009 disposed of the appeal on the ground that despite having been granted opportunity, partial amount of deposit has been paid and, therefore, vide the said order, the first appellate authority has dismissed the first appeal. If we refer to Second Appeal No. 405 of 2010, the same is essentially against the said order dated 29.04.2009.The said appeal came to be filed in view of the fact that there was a liability crystallized for the assessment period of 200506 under the provisions of Gujarat Value Added Tax Act as well as under the Central Sales Tax Act and, therefore, it appears that appeal came to be filed, but nonetheless the issue involved in appeal is related to nonpayment of predeposit and, therefore, it appears to this Court emerging from the record that the appeal referred to above is essentially against the order of disposal of the First Appeal for want of predeposit payment and, therefore, the scope of inquiry and adjudication of the law thereby was related to this issue only. Now t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 issue is covered by the decision of the higher forum, it can always direct the parties to agitate these aspects before the concerned authority [first appellate authority here]. 8. We also need to take note of the fact that the intent of incorporating the provision of predeposit before proceeding with the appeal is well carved out by the decision of the Apex Court in case of Benara Valves Limited v. Commissioner of Central Excise, reported in 2006 [204] ELT 513 (SC). 8.1 If either side approaches the Tribunal, being aggrieved by the order of either grant or rejection of requirement of predeposit, it is open for the Tribunal to take into consideration the law on the subject and decide the validity of the order of directing or not directing the amount of predeposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of predeposit issue only, wherein also in the case of Tax Appeal No. 688 of 2013, the Court has observed like this in order dated 30.01.2014 which is also in the opinion of this Court worth to be taken note of. Hence, the relevant extract of the said decision contained in para 3 and 4 are reproduced hereinafter :" 3. We are of the opinion that the Tribunal committed serious error in examining the appellant's grievances on the merits of the order of assessment. The order of assessment was passed by the adjudicating authority, which was appellable by way of first appeal before the Appellate Commissioner. Section 73(4) of the Gujarat Value Added Tax Act, 2003, requires that no appeal against the order of assessment shall ordinarily be entertained by the Appellate Commissioner, unless such appeal is accompanied by proof of payment of tax in respect of which the appeal has been preferred. Proviso to section 73(4), however, provides that the 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, interest, if any or as the case may be, of the penalty, or (b) on proof of payment of such small ..... X X X X Extracts X X X X X X X X Extracts X X X X
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