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TMI Blog2023 (11) TMI 519X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 highlight. The interest of justice would be met if the appellant is directed to pay Rs. 15,00,000/- instead of Rs. 42,00,000/- in respect of all the three years in Six Appeals towards pre-deposits within a period of one month from today i.e. on or before 31.10.2023 - The appellant shall file a bond before the Assessing Officer to the satisfaction of the Assessing Officer with regard to the outstanding dues to be paid by the appellant to the effect that the appellant fails in the appeal filed by the Tribunal subject to further rights and contentions of the appellant in accordance with law, the appellant shall pay the amount of outstanding tax liability. All these appeals are partly allowed by remanding the matters back to the First Appellate Authority - The impugned orders are quashed and set aside. - HONOURABLE MR. JUSTICE BIREN VAISHNAV AND HONOURABLE MR. JUSTICE BHARGAV D. KARIA Appearance: For the Appellant( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals challenging the orders passed by the Deputy Commissioner, State Tax, Ghatak 5, Ahmedabad (hereinafter referred to as the First Appellate Authority ) on 25.10.2019 under Section 73 of the Gujarat Value Added Tax Act (for short the GVAT Act ) and under Section 9(2) of the CST Act whereby the First Appeals were dismissed by the Appellate Authority confirming the order passed by the Assistant Commissioner of State Tax, Ghatak-18, Ahmedabad for the aforesaid period. 7. By the assessment orders as well as the appellate order, following dues were crystallized: GVAT Act S.A. Nos. Years Tax Interest Penalty Total 25/2020 2010-11 3097598 2705226 5743010 11545834 27/2020 2011-12 4682289 3882090 11907838 20472217 29/2020 2012-13 8990698 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree years and the Tribunal ought to have determined the amount of pre-deposit reasonably considering the fact that the business of the appellant is closed since April 2016. 12. Learned advocate Ms. Parikh would point out from the Assessment Order that the Assessing Officer has determined the liability of the appellant to pay the tax without considering the fact that the entire turnover of the appellant was interstate and inspite of that the Tax is levied under the VAT Act and therefore there is a very good prima facie case in favour of the appellant. 13. It was submitted that the appellant produced all the details and records before both the authorities, however the same was not considered. 14. It was further submitted that the appellants would therefore be required to raise all the contentions before the Tribunal on merits. 15. On the other hand, learned AGP Ms. Shrunjal Shah appearing for the respondent Department submitted that the Tribunal has passed just and proper order keeping in mind the order passed by this Court in Kavya Marketing (Supra). 16. It was further submitted that as against the total tax liability of more than Rs. 1.5 Crores, the Tribunal has only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) without payment of tax with, penalty (if any) or, as the case may be, of the penalty, or (b) on proof of payment of such smaller sum as if may consider reasonable, or (c) on the appellant furnishing in the prescribed manner, security for such amount as the appellate authority may direct.] 9. The aforesaid provision apparently makes it clear that ordinarily no appeal against an order of assessment shall be entertained by the appellate authority, unless an appeal is accompanied by satisfactory proof of payment of tax in respect of which an appeal has been preferred. The proviso to clause 4 makes the picture further clear. The said proviso explicitly gives discretion to the appellate authority to entertain an appeal against the orders as provided under clause (a) or (b) or (c) of sub section 4 of section 73 of the act. Thus, the legislation in its wisdom has reposed discretion upon the appellate authority to entertain an appeal without payment of tax with penalty or in appropriate case on proof of the payment of a smaller sum as the appellate authority may consider reasonable or in an appropriate case on furnishing security by the appellant for such an amount which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be any difficulty in entertaining the appeal even without insisting for payment of tax penalty or even smaller amount. 13. In light of the aforesaid facts, we find that the Tribunal committed serious error of law by not taking note of the prima facie case of the writ applicant while examining the aspect of payment of pre-deposit. Therefore, we are of the view that in the facts and circumstances of the case, the order passed by the Tribunal dated 22.11.2021 is hereby quashed and set aside. We further direct the Tribunal to hear the matter on merits so far as the issue of grant of stay pending appeal is concerned, taking into consideration the Circulars issued by the CBDT bearing No. 1914, dated 02.02.1993 as modified by instructions dated 29.02.2016, which permits 15% of the disputed demand to be deposited for stay by way of a general condition. Thus, even the instructions issued by the CBDT itself suggests an inbuilt-mechanism to either decrease or increase the percentage of disputed tax demand to be deposited by an assessee to enjoy stay pending the appeal. Indisputably, the instructions are in the nature of guidelines to enable the Assessing Officer and Commissioner t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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