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TMI Blog2024 (10) TMI 1175X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 18.11.2022 dismissing second appeals on the ground of non-payment of pre-deposit, it is opined that the Tribunal has admittedly not considered the prima facie case of the appellant while determining the amount of pre-deposit which ought to have been considered as per the decision of this Court in case of Kavya Marketing [ 2022 (4) TMI 1202 - GUJARAT HIGH COURT ]. The impugned order passed by the Tribunal is accordingly quashed and set aside. The appeals are therefore allowed by remanding the matter back to the Tribunal to consider the prima facie case of the appellant for deciding the quantum of pre-deposit, if required. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTICE D.N.RAY Appearance: For the Appellant(s) No. 1 : Uchit N Sheth (7336). For the Opponent(s) No. 1: Government Pleader. COMMON ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. This Court by order dated 21.06.2023 has admitted Tax Appeals on the following substantial questions of law: 19(a) Whether on the facts and in the circumstances of the case the Gujarat Value Added Tax Tribunal is justified in not granting waiver of pre-deposit to the appellant without assigning any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the time of admission for the period from 2010-11 to 2012-13 giving no pre-deposit direction and therefore, Second Appeal No. 373 to 379/2020 for the said period could not have been dismissed for non-compliance of the direction of pre-deposit passed by the Tribunal. 6. On perusal of the order dated 16.06.2022 passed by the Tribunal it is apparent that the Tribunal in para 5 of the said order has categorically observed as under: Now to determine reasonable pre-deposit for the financial years 2013-14, 2014-15, 2015-16 and 2016-17, Ld. G.R. has submitted detail pursis along with ledger account of particular purchaser. After taking consideration submission of Ld. G.R. and necessary documents, it is a fit case for determination of pre-deposit as per section 73 of GVAT Act and as per ratio laid down by the Hon. High Court in the case of Kavya Marketing. Keeping in mind all the facts, discussion and ratio of Hon. High Court, the appellant is directed to deposit Rs. 14,00,000/-against the tax demand of Rs. 67,23,758/-for the financial year 2013-14, Rs. 18,00,000/-against the tax demand of Rs. 91,22,027/-for the financial year 2014-15, Rs. 28,00,000/- against the tax demand of Rs. 1,40,36 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appellant for such an amount which the appellate authority may direct. Obviously, at the stage of deciding the issue of admitting an appeal based on the payment of pre-deposit amount, the Tribunal is expected to venture into the merits of the case, wherein considering prima facie case which may very from case to case, the appellate authority may entertain the appeal accordingly. From the language of the statute, one can carved out in a given situation, the appellate authority may admit the appeal even without insisting for payment of tax with penalty or even a smaller sum or may not even insisting for furnishing of security. 10. In the case on hand, while going through the order dated 22.11.2021 passed by the Tribunal, the only reason assigned by the Tribunal as recorded in paragraph 5 of the said order is that the hearing of the matter has been prolonged from the year 2019 on the aspect of pre-deposit and stay and the first appeal being summarily dismissed without going into the merits of the case. Thus, the Tribunal deemed it fit to direct the appellant to pay the amount of Rs. 20,00,000/- towards the pre-deposit. 11. We find that such an approach of the Tribunal of not add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and Commissioner to exercise such discretionary powers uniformly. 14. In the result, the present writ application succeeds and is hereby allowed. The impugned order passed by the Tribunal dated 22.11.2021 is hereby quashed and set aside. The second appeal is ordered to be restored its original file before the Tribunal. The Tribunal is further directed to expeditiously hear the appeal within a period of two months from the date of receipt of copy of writ of this order. The respondents are hereby directed not to take any coercive actions pending the second appeal before the Tribunal. 9. However, the Tribunal, without considering the prima facie case of the appellant, has determined the amount of pre-deposit which is evident from the above observations of the Tribunal. 10. Learned advocate Mr. Uchit Sheth for the appellant submitted that the Tribunal has ignored the decision of the Hon ble Supreme Court in case of Southern Motors vs. State of Karnataka and ors reported in (2017) 3 SCC 467 wherein it is held that the actual quantification of the trade discount depending on the nature of the trade and related stipulations in any contract with regard thereto, may be deferred till the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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