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TMI Blog2023 (1) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... st Appellate Authority are directed to hear the appeal on merits. The First Appellate Authority may consider the payment of pre-deposit, a fresh keeping in mind the financial hardship expressed by the petitioner. It is made clear that we have not gone into the merits of the matter and kept all the issues open including the stay of demand to the file of the First Appellate Authority. Petition disposed off. - R/SPECIAL CIVIL APPLICATION NO. 25632 of 2022 - - - Dated:- 15-12-2022 - HONOURABLE MS. JUSTICE SONIA GOKANI AND HONOURABLE MRS. JUSTICE MAUNA M. BHATT Appearance: UCHIT N SHETH(7336) for the Petitioner(s) No. 1 ADVANCE COPY SERVED TO MR TRUPESH KATHIRIYA, ASST. GOVERNMENT PLEADER/PP for the Respondent(s) No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7, the petitioner preferred Second Appeal before the Tribunal. The Tribunal under order dated 20.07.2022 directed the petitioner as under: (6). Considering the submission of both the parties it is crystal clear that appellant has not paid any pre-deposit before the First Appellate Authority as per section 73 of the GVAT Act and appellant is bound to pay reasonable pre-deposit. Now to determine the reasonable pre- deposit in this matter the tax demand is Rs. 6,95,01,762/- Interest is Rs. 5,00,41,269/- and penalty is Rs.20,85,05,286/- total Rs. 32,80,48,317/- against this demand the First Appellate Authority has not decided any pre-deposit in their order, the pre-deposit is only on tax elements without tax and interest, in this matter th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 08.09.2022, present petition is filed. 3. Heard the learned advocate, Mr.Uchit Sheth for the petitioner and learned AGP, Mr.Trupesh Kathiriya for respondent-State. 4. Learned advocate, Mr.Uchit Sheth has submitted that the order of the Tribunal dated 08.09.2022 demanding pre-deposit and thereafter summarily dismissing the appeal on the ground of non-payment of pre-deposit is arbitrary and illegal. 4.1 He has further submitted that the Tribunal demanded pre-deposit without assigning any reasons and without considering the prima facie case of the petitioner. Relying upon the decision of the Coordinate Bench of this Court in case of Kavya Marketing vs. State of Gujarat in Special Civil Application No.1027 of 2022. He submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m or may not even insisting for furnishing of security. 10. In the case on hand, while going through the order dated 22.11.2021 passed by the Tribunal, the only reason assigned by the Tribunal as recorded in paragraph 5 of the said order is that the hearing of the matter has been prolonged from the year 2019 on the aspect of pre-deposit and stay and the first appeal being summarily dismissed without going into the merits of the case. Thus, the Tribunal deemed it fit to direct the appellant to pay the amount of Rs.20,00,000/- towards the pre-deposit. 11. We find that such an approach of the Tribunal of not addressing prima facie case of the writ applicant at the predeposit stage is erroneous. In fact, having gone through the relevant p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur opinion, the decision of Kavya Marketing (supra) would squarely be applicable in facts of the present case. In our opinion, therefore, the Tribunal has committed serious error of law by not taking note of the prima facie case of the petitioner while examining the aspect of pre-deposit. Therefore, we are of the view that, in the facts and circumstances of the present case, the order passed of the Tribunal dated 08.09.2022 and order dated 20.07.2022 deserves to be quashed and set aside and hereby quashed and set aside. 6.1 We further direct the Commissioner Appeal-First Appellate Authority to hear the appeal on merits. The First Appellate Authority may consider the payment of pre-deposit, a fresh keeping in mind the financial hardship e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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