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TMI Blog2023 (3) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... t the stage when the directions had been issued for pre-deposit. This Court had frowned upon such approach on the part of the Tribunal by holding that 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. In the instant case, as can be noticed from the chronology of events, the original reassessment order which was passed after the provisional attachment order and the audit assessment was placed upon the provisional asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gar. He was engaged in the business of trading electronic items such as mobiles phones, computers, etc. 3. The search proceedings were conducted at the premises of the appellant on 30th October, 2014 which continued till 3.11.2014. No unaccounted stock or sale/purchase was found, according to the appellant. However an issue was raised with respect of classification of sales made through websites as local sales even though the ultimate customer was located outside the State of Gujarat. For inter- State sales, input tax credit was required to be partially reduced because of the notification issued under Section 11(6) of the Vat Act. Therefore, provisional assessment order was passed under Section 9(2) of the CST Act read with Section 33 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Second Appeal was preferred challenging the first Appellant Order wherein, the Tribunal also had directed the pre-deposit as same amount on 22.3.2022 and hence, the same was challenged. Relying on the decision of this Court in case of Kavya Marketing Vs. State of Gujarat passed in Special Civil Application No. 1027 of 2022 decided on 10th February, 2022. 9. This Court while issuing notice for final disposal on 16.12.2022, passed the following order:- 1. Prayers sought for in the present appeal are as follows: A. The questions of law framed in para 19 herein above may please be answered in favour of the Appellant-assessee and against the Respondent-department; B. The impugned order of Tribunal annexed at Annexure A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erverse in the legla sense of the term ? (c) Whether on the facts and in the circumstances of the case the Gujarat Value Added Tax Tribunal is justified in demanding pre-deposit even though the original reassessment order was passed exparte during lockdown induced by Covid-19 pandemic ? (d) Whether on the facts and in the circumstances of the case the Gujarat Value Added Tax Tribunal is justified in demanding pre-deposit even though the original reassessment order was based upon provisional assessment order by ignoring the subsequent audit assessment order and by considering the same material which was available at the time of assessment ? (e) Whether on the facts and in the circumstances of the case the Gujarat Value Adde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. This Court on number of occasion has come across the identical facts of the case vis-a-vis admitting of appeal at the stage of payment of pre-deposit. We have noticed that while deciding the admission of appeals on merits, the first appellate authority summarily dismissed the appeal on the ground of non payment of pre-deposit, and when such order is challenged in second appeal before the Tribunal, it is incumbent upon the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder and the audit assessment was placed upon the provisional assessment order and also considering the very material which was taken into consideration during the audit assessment. As per the case of the appellant while passing the reassessment order, no opportunity of hearing has been made available as it was during the lockdown induced by the COVID 19 pandemic, that such an order was passed. It is not disputed by the respondent that the appellant was hampered on account of the condition which prevailed at the relevant point of time. The Tribunal ought to have regarded this aspect at the time of directing the pre-deposit to the tune of Rs.12,02,910/-. It had taken notice of the fact that carried forward ITC in case of the present appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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