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TMI Blog2023 (10) TMI 1155X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be liable for the other business done by the agents. Effectively, the tax dues against the appellants is Rs. 204 crores of which Rs. 119 crores has been paid under protest. The case of the appellants before the Tribunal was that the deposit so made be considered towards pre-deposit under Section 73 of the GVAT Act. Merely because the amount was paid, as protest amount , the first appellate authority could not have directed the pre-deposit without considering the payment already made by the appellant, particularly, when such amounts were paid before passing of the assessment orders. The decision of the Hon ble Apex Court in the case of VVF India [ 2021 (12) TMI 477 - SUPREME COURT] was in context of Section 26(6A) of the Maharashtra VAT Act which did not have a stipulation of the discretion in the appellate authority as is evident from the language of Section 73 of the GVAT Act. There is no reason why the appeals on the facts of the present case need to be entertained - Appeal dismissed. - HONOURABLE MR. JUSTICE BIREN VAISHNAV AND HONOURABLE MRS. JUSTICE MAUNA M. BHATT R/TAX APPEAL NO. 664 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 12474 of 2023 With R/TAX ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O. 715 of 2023 With R/TAX APPEAL NO. 716 of 2023 With R/TAX APPEAL NO. 717 of 2023 With R/TAX APPEAL NO. 718 of 2023 With R/CIVIL APPLICATION NO. 1479 of 2023 In R/TAX APPEAL NO. 705 of 2023 With R/CIVIL APPLICATION NO. 1469 of 2023 In R/TAX APPEAL NO. 706 of 2023 With R/CIVIL APPLICATION NO. 1477 of 2023 In R/TAX APPEAL NO. 707 of 2023 With R/CIVIL APPLICATION NO. 1480 of 2023 In R/TAX APPEAL NO. 708 of 2023 With R/CIVIL APPLICATION NO. 1468 of 2023 In R/TAX APPEAL NO. 709 of 2023 With R/CIVIL APPLICATION NO. 1454 of 2023 In R/TAX APPEAL NO. 710 of 2023 With R/CIVIL APPLICATION NO. 1463 of 2023 In R/TAX APPEAL NO. 711 of 2023 With R/CIVIL APPLICATION NO. 1456 of 2023 In R/TAX APPEAL NO. 712 of 2023 With R/CIVIL APPLICATION NO. 1465 of 2023 In R/TAX APPEAL NO. 713 of 2023 With R/CIVIL APPLICATION NO. 1471 of 2023 In R/TAX APPEAL NO. 714 of 2023 With R/CIVIL APPLICATION NO. 1484 of 2023 In R/TAX APPEAL NO. 715 of 2023 With R/CIVIL APPLICATION NO. 1482 of 2023 In R/TAX APPEAL NO. 716 of 2023 With R/CIVIL APPLICATION NO. 1481 of 2023 In R/TAX APPEAL NO. 717 of 2023 With R/CIVIL APPLICATION NO. 1475 of 2023 In R/TAX APPEAL NO. 718 of 2023 Appearance: For the Appellant(s) No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation so carried out, since the Principal Dharampal Satyapal Ltd. was exposed to financial and reputational injury, an amount of approximately Rs. 100 crores was deposited by the entity to ensure release of his bank accounts. 4.4 Various assessment proceedings were initiated against M/s. Mangalam Enterprise and assessment orders were passed which according to the Principal were bad in law. These assessment orders were a subject matter of challenge in the first appeals before the Deputy Commissioner who dismissed these appeals on the ground that no pre-deposit amount was furnished while filing such appeals, though it was the case of the assessee s interlink with the Principal that an amount of Rs. 100 crores had already been deposited by Dharampal Satyapal Ltd. even before the conclusion of the reassessment proceedings. 4.5 Aggrieved by the dismissal of the first appeals, Second Appeals were filed by the Principal as well as the CSAs against whom the assessment as well as reassessment proceedings were finalized. All these appeals were consolidated and heard together. 4.6 It was the case of the appellants before the Tribunal that the orders dismissing the first appeals summ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that reliance placed by the Tribunal on the decision of the Apex Court in the case of VVF(India) Ltd. vs. State of Maharashtra arising in Civil Appeal No. 7387 of 2021 was misconceived as the provisions of the Maharashtra Vat Act were not pari materia with that of the Gujarat VAT Act. 5.4 Mr. Trivedi would submit that considering the provisions of Section 30(6) read with Section 42(7) of the GVAT Act, the amount payable as tax dues for the purposes of Section 73 would include tax, penalty and interest. Thus, the order of the Tribunal is erroneous, substantial question of law therefore is involved and the appeals filed by the State be allowed. 6. Mr. Mihir Joshi, learned Senior Advocate appearing with Ms. Nisha Ojha, learned advocate for M/s. Wadia Ghandy Co. for the respondents would submit that the contention of the learned AGP is nothing but a clever interpretation misleading the court into the gamut of calculations when the interpretation per se on reading Section 73 indicates that when an appeal is accompanied by satisfactory proof of payment of tax in respect of which an appeal has been preferred, there is no question of falling into the provisions of Section 30(6) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 933 Jay mahakali Tradelink services 07.05.201 5 to 31.12.2015 14,07,98,186 1,87,89,353 42,23,94,558 58,19,82,057 9,43,98,652 9,43,98,652 48,75,83,445 5 947 shree khodiyar sales agency 20142015 23,16,49,043 8,19,58,769 69,49,57,129 1,00,85,64,941 7,50,05,633 6,17,27,946 13,67,33,579 87,18,31,362 6 949 Shree khodiyar sales agency 02.01.15 to 31.03.16 1,33,79,863 54,18,845 4,01,39,590 5,89,38,298 5,89,38,298 7 950 Bholenath sales agency 09.09.14 to 31.03.15 18,20,16,788 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 95,475 95,475 15 963 Krishna Enterprise 2012-13 15,04,90,429 9,26,60,109 45,14,71,288 96,46,21,826 10,53,43,213 10,53,43,213 58,92,78,613 16 974 Shiv Enterprise 01.07.13 to 31.03.14 15,10,77,134 7,40,47,490 45,32,41,402 67,83,66,026 14,73,87,880 14,73,87,880 53,09,78,146 17 976 Shiv Enterprise 01.04.14 to 30.06.14 5,80,34,654 2,69,86,110 17,41,13,935 25,91,34,690 25,91,34,690 18 977 Shiv Enterprise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,79,467 1,00,00,00,000 1,19,33,79,467 7,05,82,63,107 7. Having heard learned advocates for the respective parties, the dues as per the various assessment orders in the cases under consideration read as under: 7.1 Perusal of the order of the Tribunal indicates that it was the case of the principal appellant that the transactions in question were not bogus and the appellant cannot be liable for the other business done by the agents. Effectively, the tax dues against the appellants is Rs. 204 crores of which Rs. 119 crores has been paid under protest. The case of the appellants before the Tribunal was that the deposit so made be considered towards pre-deposit under Section 73 of the GVAT Act. Merely because the amount was paid, as protest amount , the first appellate authority could not have directed the pre-deposit without considering the payment already made by the appellant, particularly, when such amounts were paid before passing of the assessment orders. 8. Section 73 of the GVAT Act, in particular sub-section 4, reads as under: (4) No appeal against an order of assessment shall ordinarily be enterta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant has preferred the First Appeals before the First Appellate Authority and Firs Appellate Authority has summarily rejected all the appeals. 5) First Appellate Authority has not considered the protest payment made by the appellant and his agents against the disputed tax demand while deciding the pre-deposit. 6) In all the appeals the disputed tax demand is not more than Rs. 204 Cr under the VAT Act and under the CST Act the demand is Rs. 90 lakh. Which was forfeited u/s. 31(3) read with section 9(2) of the CST Act. 7) Appellant and his agents have been assessed as jointly and severally by the Tax Authority under section 50 of the GVAT Act and created tax liability. In light of above prima facie facts now, the Tribunal has to determine the reasonable pre-deposit by taking into consideration the prima facie facts narrated by both the parties and as per the judgment of M/s. Kavya Marketing. After taking into consideration the above facts Tribunal is of the opinion that in all these appeals it is a non-disputed fact that Tax Authority has assessed the tax liability against the appellant's principal and his agents and the total Tax liability is approximat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has summarily dismissed the appeals without touching the merits of the cases only on the ground of non compliance of direction of pre- deposit and as appellant's principal and his agents have made the protest payment in these cases this Tribunal is not directing any amount towards the pre-deposit and being a summary rejection in all the appeals all the matters are remanded back to the First Appellate Authority for fresh hearing with direction of stay against recovery as per the judgment of Hon ble High Court of Gujarat in M/s. Tudor India Limited The State Tax Authority is hereby directed to lift up the bank attachment made on the account of appellant with immediate effect. 11. It is in light of these facts, if we consider the findings of the appellate tribunal and the relevant paras of which are quoted as above, there is no reason why the appeals on the facts of the present case need to be entertained. 12. The appeals are accordingly dismissed. It is clarified that the affirmation of the order of the tribunal in the appeals are in respect of the peculiar facts of these case. 13. Since we are dismissing the appeals of the State, in Special Civil Application No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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