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2015 DIGILAW 290 (GUJ)

Shree Shyam Metal Corporation v. State of Gujarat

2015-03-13

M.R.SHAH, S.H.VORA

body2015
Judgment M.R. Shah, J. 1. In the facts and circumstances of the case and with the consent of learned advocates appearing for the respective parties, both the matters are taken up for final hearing. Feeling aggrieved by and dissatisfied with the impugned common judgment and order passed by the learned Gujarat Value Added Tax Tribunal (hereinafter referred to as "the learned Tribunal") passed in Second Appeal Nos. 463/14 and 464/14, by which the teamed Tribunal has dismissed the aforesaid appeals for non-payment of pre-deposit amount as directed by the learned Tribunal by its order dated July 22, 2014, the original appellant has preferred present tax appeals. 2. From the impugned order, it appears that against the orders passed by the learned assessing officer, the respective appellant preferred appeal before the first appellate authority and the first appellate authority directed the appellant to deposit a sum of Rs. 15,43,050 as pre-deposit towards the liability for the assessment year 2008-09 and directed the appellant to deposit Rs. 6,40,026 for the assessment year 2009-10. It appears that the appellant did not make payment of pre-deposit as directed by the first appellate authority and therefore, both the appeals preferred by the appellant came to be dismissed for non-payment of pre-deposit amount. 3. Feeling aggrieved by and dissatisfied with the orders passed by the first appellate authority in dismissing the respective appeals for non-deposit of the amount of pre-deposit, the appellant herein preferred appeals before the learned Tribunal being Second Appeal Nos. 463/14 and 464/14. 4. It appears that by common order dated July 22, 2014, the learned Tribunal directed the appellant to pay amount of Rs. 15,43,015 and Rs. 6,30,026, respectively by way of pre-deposit for the assessment year 2008-2009 and 2009-2010, respectively within a period of two months. However, as the said amounts were not deposited, subsequently, by common order dated September 22, 2014, the learned Tribunal has dismissed the appeals. Feeling aggrieved by and dissatisfied with the impugned common order passed by the learned Tribunal the common appellant has preferred the present tax appeals. 5. Heard Shri Hemani, learned, advocate appearing on behalf of-the petitioner and Shri Chintan Daye, learned Additional Government Pleader appearing on behalf of the respondent. 6. We have perused and considered the common order passed by the learned Tribunal dated July 22, 2014 passed in Second Appeal Nos. 5. Heard Shri Hemani, learned, advocate appearing on behalf of-the petitioner and Shri Chintan Daye, learned Additional Government Pleader appearing on behalf of the respondent. 6. We have perused and considered the common order passed by the learned Tribunal dated July 22, 2014 passed in Second Appeal Nos. 463/14 and 464/14, by which, the appellant was directed to deposit/pay an amount of Rs. 15,43,015 and Rs. 6,30,026 by way of pre-deposit for the assessment year 2008-09 and 2009-10, respectively. However, from the impugned order, it appears that the learned Tribunal has not decided anything on merits and/or has not made any observation on merits of the order passed by the first appellate authority directing the appellant to deposit the aforesaid amount as pre-deposit. Without observing anything own merits and/or without considering anything with respect to the legality and validity of the order passed by the, first appellate authority/the learned Tribunal has. mechanically passed an order directing the appellant to deposit the amount of pre-deposit as directed by the first appellate authority. When the second appeals were against the order passed by the first, appellate authority dismissing the appeal on non-payment of pre-deposit of the aforesaid amount, the learned Tribunal was required to decide the appeals on merits and was required to consider the legality and validity of the order passed by the first appellate authority directing the appellant to, decide the aforesaid amount and dismissing the appeal on non-payment of the amount of pre-deposit. Except in para 3, no reasons at all have been assigned by the learned Tribunal. We could not find, any reason by the learned Tribunal directing the appellant to pay the aforesaid amount as pre-deposit. Under the circumstances, as such, the impugned order passed by the learned Tribunal cannot be. sustained and the matters are to be remanded to the learned Tribunal to decide the appeals afresh in accordance with law and on merits so as to enable the learned. Tribunal to consider the orders passed by the first appellate authority directing the appellants to pay the aforesaid amount by way of pre-deposit and dismissing the appeals on non-payment of the pre-deposit. While considering the issue of pre-deposit, even the learned Tribunal is required to consider the provisions of the Act, more particularly, section 73(4) of the Gujarat Value Added Tax Act. 7. In view of the above, both the appeals succeed. While considering the issue of pre-deposit, even the learned Tribunal is required to consider the provisions of the Act, more particularly, section 73(4) of the Gujarat Value Added Tax Act. 7. In view of the above, both the appeals succeed. The common order passed by the learned Tribunal dated July 22, 2014 as well, as common order dated September 22, 2014 passed in Second Appeal Nos. 463/14 and 464/14 are hereby quashed and set aside and the matters are remanded to the learned Tribunal to consider the appeals afresh in accordance with law and to consider and to pass reasoned order while considering the orders passed by the first appellate authority of pre-deposit as well as dismissing the appeals on non-payment of pre-deposit and to consider the provisions of section 73(4) of the Gujarat Value Added Tax Act. The aforesaid exercise shall be completed by the learned Tribunal within a period of two months from the date of receipt of the present order. It is reported that pursuant to the interim order passed by this court, the appellants have deposited 10 percent, of the principal tax liability, which shall be continued to be retained by the Department subject to final outcome of the second appeals by the learned Tribunal on remand. No costs. In Favour of Assessee.