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TMI Blog2023 (6) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... the Maharashtra Value Added Tax Act, 2002 (for short, the "Act"), forming part of the order as appealed. 2. The assessment in question is for the period 2012-13. The Assistant Commissioner, Sales Tax passed an assessment order inter alia holding that the petitioner is liable to pay tax of Rs. 34,85,603/-and interest under Section 30(2) and 30(3) of the Act, quantified at Rs. 3,60,932/- and Rs. 20,38,268/- respectively. Further, penalty under Section 29(3) of the Act was levied at Rs. 8,71,401/-. In pursuance of such order passed by the Assessing Officer, the petitioner deposited an amount of Rs. 56,00,000/-. Thus, the balance amount including interest amount and penalty as payable by the petitioner was an amount of Rs. 61,96,204/-. 3. The order passed by the Assessing Officer was carried by the petitioner in a first appeal (First Appeal No. VAT-495/2017-18) filed under Section 26(6A) of the Act, which came to be adjudicated by an order dated 27 March, 2018 passed by the first appellate authority. By such order the first appellate authority partly allowed the petitioner's appeal, thereby modifying the assessment order, with a direction to the assessing authority to recover the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no appeal shall lie in regard to the interest payable by the dealer under the provisions of the Act. It is Mr. Thakar's submission that on a cumulative reading of the provisions of Section 23 (Assessment) and Section 26 (6A) and (6B) read with the provisions of Section 85 of the Act, it is clear that law would permit that an appeal can be filed by an assessee against a composite order passed by the respective authorities which would include an order on interest. It is his submission that Section 26 of the Act does not make any provision or create an independent category of an appeal only against the assessment of the primary taxes, so as to exclude any order on levy of interest under Section 30(2) of the Act. It is hence his submission that once such composite order is passed and which is an appealable order under sub-section (6A) and (6B) of Section 26, an application for stay is maintainable against the order as a whole. According to Mr. Thakar, the tribunal has failed to appreciate the true purport of the provisions of Section 85 sub-section (2) (b-3) and the provisions of Section 26, when Section 85 itself saves as to what is provided for in Section 26. Mr. Thakar in support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s referred by us read thus:- "26. Appeals.- (1)[An appeal, from every order, not being an order mentioned in subsection (2) of this section and sub-section (2) of section 85] passed under this Act or rules or notifications, shall lie if the order is made, - (a) by a Sales Tax Officer or an Assistant Commissioner, or any other officer sub-ordinate thereto, to the Deputy Commissioner; (b) by a Deputy Commissioner or Senior Deputy Commissioner, to the Joint Commissioner; (c) by a Joint Commissioner, [Additional Commissioner, Advance Ruling Authority] or the Commissioner, to the Tribunal. (2) In the case of an order passed in appeal by a Deputy Commissioner or a Joint Commissioner, a second appeal shall lie to the Tribunal. (3) Every order passed in appeal by the Tribunal under this section, shall, subject to the provisions of sections 24 and 27, be final and every order passed in appeal by any other appellate authority, shall, subject to the provisions of sections [24, 25 and 27], be final. (4) Subject to the provisions of sections 80 and 81, no appeal including a second appeal shall be entertained unless it is filed within sixty days from the date of the communica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in which the order appealed against was passed, notwithstanding that such matter was not raised before it by the appellant or that no order was made in the said proceedings regarding such matter. (6) The appellate authority or the Tribunal, as the case may be, may, while admitting the appeal, pending the disposal of the appeal, stay the order appealed against in full or part, subject to such conditions or restrictions as it may deem necessary including a direction for depositing of a part or whole of the disputed amount by the appellant: [Provided that, in case of an appeal filed on or after the 1st July 2014 against any order, in which claim against declaration or certificate, has been disallowed on the grounds of non-production of such declarations or, as the case may be, certificates then,- (a) where such appeal is filed after two years from the end of the year to which such claim relates, then the stay shall not be granted unless the appellant makes 100 per cent payment of tax, in respect of such claim, (b) where such appeal is filed before the expiry of two years from the end of the year to which such claim relates, the stay, if any, shall stand vacated, if the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f tax, disputed by the appellant so far as such tax liability pertains to tax, on grounds, other than those mentioned in clause (a), (c) in case of an appeal against an order, other than an order, described in clauses (a) and (b) above, an amount equal to 10 per cent. of the amount of tax disputed by the appellant, (d) in case of an appeal against a separate order imposing only penalty, deposit of an amount, as directed by the appellate authority, which shall not in any case, exceed 10 per cent. of the amount of penalty, disputed by appellant : Provided that, the amount required to be deposited under clause (b) or, as the case may be, clause (c), shall not exceed rupees fifteen crores. (6B) No appeal shall be filed, before the Tribunal, against an order, which is passed on or after the commencement of the Maharashtra Tax Laws (Levy, Amendment and Validation) Act, 2017 (Mah. XXXI of 2017), unless it is accompanied by the proof of payment of an aggregate of following amounts, as applicable,- (a) in case of an appeal against an order, in which claim against declaration or certificate has been disallowed on the grounds of non-production of such declarations or, as the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on priority to the exclusion of all other appeals. 30. Interest payable by a dealer or person.- (1) A dealer who is liable to pay tax in respect of any year, and who has failed to apply for registration or has failed to apply for registration within the time as required by or under this Act, shall be liable to pay by way of simple interest, in respect of each of such years, in addition to the amount of tax payable in respect of such year, a sum calculated at the prescribed rate on the amount of such tax for each month or part thereof for the period commencing on the 1st April of the respective year to the date of the payment of tax. The amount of such interest shall be calculated by taking into consideration the amount of, and the date of, such payment, when the payment is made on different dates or in parts, or is not made. When, as a result of any order passed under this Act, the said amount of tax is reduced, the interest shall be reduced accordingly and where the said amount is enhanced, [the interest on the enhanced amount shall be calculated mutatis mutandis up to the date of such order]: Provided that, in respect of any of such years, [the amount of interest payab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1st April 2017, then the interest shall be payable on the excess amount of tax, payable as per such annual revised return from the prescribed dates by the prescribed class of dealers.] (3) In the case of a registered dealer, in whose case, any tax other than the tax on which interest is leviable under sub-section (2) has remained unpaid upto one month after the end of the period of assessment, such dealer shall be liable to pay by way of simple interest, [a sum calculated at the prescribed rate on the amount of such tax] for each month or part thereof from the date next following the last date of the period covered by an order of assessment till the date of the order of assessment and where any payment of such unpaid tax whether in full or part is made on or before the date of the order of assessment, the amount of such interest shall be calculated by taking into consideration the amount and the date of such payment. If, as a result of any order passed under this Act, the said amount of tax is reduced, then the interest shall be reduced accordingly and where the said amount is enhanced, then interest on the enhanced amount shall be calculated mutatis mutandis upto the date of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder passed or proceedings taken under this Act, the rules or notification by any authority appointed or constituted under this Act, shall be called in question in any Court, and save as is provided by section 26, [* * *], no appeal shall lie against any such order.- (2) No appeal shall lie against, - (a) any notice issued under this Act, rules or notifications, or (b) any summons issued under sub-section (1) of section 14, or [a defect notice issued under section 20] or [(b-1) an assessment order passed under sub-section (1) of section 23, or] [(b-2) an order levying penalty under sub-section (8) of section 29, or] [(b-3) an order passed under sub-sections (2) or (4) of section 30 regarding the interest payable by the dealer under any provision of this Act, or (b-4) an intimation issued under sub-section (7) of section 63, or] (c) any order issued on an application for installment, or [(d) any order or notice issued under sub-section (1) or (2) of section 34, or] [(d-1) the order passed under sub-sections (1) and (2) of section 35, or] (e) an order pertaining to the seizure or retention of books of accounts, registers and other documents, or [* ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the orders namely the direction to pay tax and the direction to pay the interest, are interconnected and become part of a common order, which is an appealable order. 13. Thus, in our opinion, it is rightly contended by the petitioner that an appeal against such composite order would necessarily include within its ambit appealability of the orders pertaining to the interest. Such composite orders are appealable orders under the provisions of sub-section (6A) and (6B) of Section 26. As a corollary the provisions of sub-section (6C) would become applicable in so far as such appeals as provided under sub-sections (6A) and (6B) are concerned, namely an entitlement of the assessee to seek stay of the recovery of the disputed dues including on interest. 14. The legislature itself has avoided to provide anything in regard to an order on interest to be kept away from the purview of such appeals which the assessee would file under either sub-section (6A) or (6B) of Section 26. Thus to read any bar to appealability in regard to an order on interest, forming part of a composite order passed by the assessing authority or by the first appellate authority, to be read in sub-section (6B) sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the submissions as urged on behalf of the petitioner on the interpretation of the provisions of Section 26 (6A) and (6B) of the Act to be kept distinct from the provisions of Section 85(2)(b-3) of the Act. 16. The petitioner's reliance on the decision of the Supreme Court in Arcot Textile Mills Limited vs. Regional Provident Fund Commissioner and Ors. (supra) is also well founded on the principles of interpretation of the provisions in question although the Supreme Court was considering the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952, (for short, "the Employees P.F. Act"). The Supreme Court, interpreting the provisions of Section 7A and 7Q of the Employees P.F. Act, observed that the competent authority under the Employees P.F. Act while determining the moneys due from the employee shall be required to conduct an inquiry and pass an order which, according to the petitioner, is akin to the order passed by the assessing officer. The Supreme Court observed that an order under Section 7A of the Employees P.F. Act is an order that determines the liability of the employer under the provisions of the Act and while determining the liability, the com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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