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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 ..... O. 691 of 2023 With R/TAX APPEAL NO. 692 of 2023 With R/TAX APPEAL NO. 693 of 2023 With R/TAX APPEAL NO. 694 of 2023 With R/TAX APPEAL NO. 695 of 2023 With R/TAX APPEAL NO. 696 of 2023 With R/TAX APPEAL NO. 697 of 2023 With R/TAX APPEAL NO. 698 of 2023 With R/CIVIL APPLICATION NO. 1461 of 2023 In R/TAX APPEAL NO. 692 of 2023 With R/CIVIL APPLICATION NO. 1486 of 2023 In R/TAX APPEAL NO. 698 of 2023 With R/CIVIL APPLICATION NO. 1470 of 2023 In R/TAX APPEAL NO. 693 of 2023 With R/TAX APPEAL NO. 699 of 2023 With R/CIVIL APPLICATION NO. 1473 of 2023 In R/TAX APPEAL NO. 694 of 2023 With R/CIVIL APPLICATION NO. 1455 of 2023 In R/TAX APPEAL NO. 699 of 2023 With R/CIVIL APPLICATION NO. 1460 of 2023 In R/TAX APPEAL NO. 695 of 2023 With R/CIVIL APPLICATION NO. 1462 of 2023 In R/TAX APPEAL NO. 696 of 2023 With R/CIVIL APPLICATION NO. 1485 of 2023 In R/TAX APPEAL NO. 697 of 2023 With R/TAX APPEAL NO. 700 of 2023 With R/TAX APPEAL NO. 701 of 2023 With R/TAX APPEAL NO. 702 of 2023 With R/TAX APPEAL NO. 703 of 2023 With R/TAX APPEAL NO. 704 of 2023 With R/CIVIL APPLICATION NO. 1466 of 2023 In R/TAX APPEAL NO. 700 of 2023 With R/CIVIL APPLICATION NO. 1459 of 2023 In R/TAX APPEAL NO. 701 of 2023 Wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respective Second Appeals by the Gujarat Value Added Tax Tribunal at Ahmedabad. 4. The appellants before the Tribunal had preferred these appeals challenging the orders of the First Appellate Authority passed under Section 73 of the Gujarat Value Added Tax Act (for short 'the GVAT Act') read with section 9(2) of CST Act whereby the first appeals were summarily dismissed. The first appeals were filed challenging the orders of the assessing authority which had raised demands for various periods as per assessment orders of all cases under the GVAT Act. 4.1 The first appeals were dismissed by the appellate authority summarily on the ground of non-compliance of the directions of pre-deposit. M/s. Dharampal Satyapal Ltd., one of the principal appellants is a reputed manufacturer and seller of varieties of mouth fresheners including pan masalas and chewing tobacco and has manufacturing units through the length and breadth of India. It had been conducting sales in the State of Gujarat in affiliation with one Shri Jethabhai Keshwani and thereafter with his son Shri Rajendra Keshwani. In order to conduct sales in remote areas, Consignee Sales Agents (CSA) were appointed which were selected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was the case of the appellants there was no scope to direct any pre-deposit in these matters. The Tribunal further directed the state authorities to lift the bank attachment on the account of the principal i.e. Dharampal Satyapal Ltd. 4.8 The aforesaid principal approached this court by filing Special Civil Application No. 12474 of 2023 with a prayer that the State Tax Officer be directed to abide by the directions of the Tribunal stated in the judgment dated 30.01.2023 and lift the attachment of the bank accounts. This court on 04.08.2023 issued notice in the said petition. This therefore trigerred the state machinery to file appeals challenging the order of the Tribunal dated 30.01.2023 with respective applications for condonation of delay in the remaining appeals. 5. Mr. Pranav Trivedi, learned AGP appearing for the State would submit that as per the details of the various assessment orders the amount of tax, interest and penalty was more than Rs. 825 crores and therefore taking the figure so arrived at, the amount of pre-deposit so made was miniscule and the Tribunal therefore committed an error in allowing the appeals and setting aside the orders of the first appellate aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was crystallized. He would therefore lay emphasis on the language of sub-section 4 of Section 33 and submit that the amount of pre-deposit would only be to the payment of tax in respect of the appeal. Dues as per Assessment order of all cases under the GVAT act Sr. No. SA Name of Agent Period Tax Interest Penalty Total Tax Paid by Agent Tax Paid by Appellant Total Tax Deposit Nat Tax Demand 1 828 Mangalam Enterprise 10.05.2011 to 31.03.2012 17,16,12,661 14,73, 36, 293 51,48,37,984 83,37,86,938 6,87,43,523 6,87,43,523 76,50,43,415 2 829 Mangalam Enterprise 2012-13 6,80,00,910 4,33,12,041 20,40,02,730 31,83,15,681 1,33,73,314 1,33,73,314 30,49,42,367 3 913 Bahuchar Enterprise 2013-14 11,26,66,076 4,78,15,423 33,79,98,228 49,84,79,727 8,72,49,110 8,72,49,110 41,12,30,617 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,21,02,910 4,13,19,589 4,13,19,589 16,87,83,321 23 819 Krishna Enterprise 2013-14 2,87,41,432 2,87,41,432 5,74,82,864 5,74,82,864 24 424 Jay Ganesh Tradelink Service 19.12.15 to 30.03.16 9,14,88,091 9,14,88,091 18,29,76,182 18,29,76,182 25 Grand Total 2,04,82,71,844 88,57,09,455 5,31,26,61,275 8,25,16,42,574 19,33,79,467 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 appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his agents and assessment orders were passed after issuing the notices. 2) During the course of investigation appellant and his agents have made the protest payment of Rs. 119 Cr. 3) The Assessment order is passed after the protest payment is made by the appellant and his agents. 4) Against the orders of Assessment Officer appellant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r non-condoning the delay occurred before the First Appellate Authority of about 2 years and 43 days in Second Appeal Nos. 1605 to 1607 of 2018 for the assessment periods 2010- 11, 01.04.2011 to 30.06.2011 and 01.11.2010 to 31.03.2011 respectively. We are also of the opinion that First Appellate Authority 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 prese ..... 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