9911796707
TMI Blog2022 (4) TMI 1202X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 22.11.2021 (annexed at Annexure A) passed by the Gujarat Value Added Tax Tribunal in Second Appeal No.784 of 2019 as well as the order passed by the first appellate authority and the matter may please be remanded to the first appellate authority for hearing on merits and stay may please be granted without insisting for any pre-deposit or security; B. Pending notice, admission and final hearing of this petition, this Hon'ble Court may be pleased to stay cocercive recovery against the Petitioner pursuant to the assessment order which is under challenge in Second Appeal No.784 of 2019 and the Tribunal may please be restrained from proceeding further in adjudication of Second Appeal No.784 of 2019; C. Ex parte ad interim relief in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, therefore, this Tribunal cannot decided the appeal on merits except to decide the amount of pre-deposit in light of the decision of Hon. High Court of Gujarat in the case of M/s. Tudor India Ltd. & A. Anilkumar, therefore, at this juncture appellant is directed to pay Rs. 20,00,000/- towards pre-deposit within one month. On payment of aforementioned amount the stay against recovery shall come into operation. (6) The Registry is directed to place this matter for compliance of order and production of pre-deposit challan on 22/12/2021." 2.1. It appears from the record that the writ applicant having failed to deposit the aforesaid requisite amount towards pre-deposit, the Tribunal vide order dated 22.11.2021 summarily rejected the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards on the various electronic gadgets sold by the writ applicant firm. It is the case of the writ applicant that though the search proceedings were conducted at the premises of the writ applicant, no incriminating material was recovered from the premises and merely on the basis of loose slips discovered from the bag of the staff member, the respondent authority has related the involvement of the writ applicant with regard to evasion of tax. It further appears that based on such alleged loose slips, the Assessing Officer on presumption has computed tax liability of the writ applicant firm to the tune of an amount of Rs. 1,80,000/- and has subsequently passed an order of assessment on 29.03.2019 thereby raising total dues to the tune of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een recorded in respect thereof. The first appellate authority has therefore committed serious error in summarily rejecting the first appeal under Section 73 of the Act, 2003. It was further submitted that even otherwise, the writ applicant has no liability to provide any service to the purchaser of warranty card. The customer has to directly approach M/s. Jumbo Company as and when such services are availed and therefore, by placing reliance upon the Master Agreement, it was submitted that no fault can be found with the writ applicant with regard to liability as determined by the Assessing Officer. 7. On the other hand, Mr. Utkarsh Sharma, the learned AGP had fairly submitted that appropriate directions may be issued towards the payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority to entertain an appeal without payment of tax with penalty or in appropriate case on proof of the payment of a smaller sum as the appellate authority may consider reasonable or in an appropriate case on furnishing security by the appellant for such an amount which the appellate authority may direct. Obviously, at the stage of deciding the issue of admitting an appeal based on the payment of pre-deposit amount, the Tribunal is expected to venture into the merits of the case, wherein considering prima facie case which may very from case to case, the appellate authority may entertain the appeal accordingly. From the language of the statute, one can carved out in a given situation, the appellate authority may admit the appeal even with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal to examine the prima facie case and thereafter, to arrive at the decision with regard to insistence of payment of pre-deposit for entertainment of appeal. This Court has time and again in identical cases has held that Tribunal is obliged to consider a prima facie case, which the appellant may be in position to highlight. It a strong prima facie case is made out, then in such circumstances, there should not be any difficulty in entertaining the appeal even without insisting for payment of tax penalty or even smaller amount. 13. In light of the aforesaid facts, we find that the Tribunal committed serious error of law by not taking note of the prima facie case of the writ applicant while examining the aspect of payment of pre-deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
