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2019 DIGILAW 1080 (GAU)

Bajrang Traders v. State of Assam

2019-09-19

A.K.GOSWAMI, MANISH CHOUDHURY

body2019
JUDGMENT : A.K. Goswami, J. Heard Ms. M.L. Gope, learned counsel for the petitioner. Also heard Mr. B. Gogoi, learned standing counsel, Finance & Taxation Department, appearing for all the respondents. 2. Challenge in this writ petition is to an order dated 26.02.2015 passed by the learned Assam Board of Revenue requiring the petitioner to deposit 25% of the disputed amount for admission of the appeal. 3. Perusal of the said order goes to show that the appeal was taken to be a first appeal and the learned counsel appearing for the petitioner had prayed for 2(two) months time to deposit the same. Averment is made in Paragraph 3 of the writ petition that request was made for deposit of 10% of the disputed amount in the form of Bank Guarantee, which was negated by the learned Assam Board of Revenue. The appeal was stated to be filed under Section 80 of the Assam Value Added Tax Act, 2003 (for short, "2003 Act"). The said appeal was filed against an order under Section 36 of the 2003 Act passed by the Superintendent of Taxes, Guwahati, Unit-D for the period 2013-14 assessing an amount of Rs. 4,19,61,670/- as due and payable. 4. An additional affidavit was filed raising an issue that the impugned order assailed in the writ petition was incompetent as the learned Chairman, who passed the order sitting singly, did not have jurisdiction under the provisions of the Assam Board of Revenue Act, 1962 (for short, "Act") and she lays emphasis on Sections 3 and 4 in support of her submissions along with Regulation 45 of the Assam Board of Revenue Regulation, 1963 (for short, "Regulation"). It is further submitted that there is no requirement under Section 80 of the 2003 Act for any pre-deposit for the purpose of admission of the appeal and Section 80(4) only empowers the Appellate Tribunal to stay recovery of any amount under dispute, subject to such terms and conditions, as may be considered necessary. Accordingly, it is submitted that insistence for pre-deposit was wholly without jurisdiction. She has further submitted that the petitioner Firm is not operating and the petitioner is going through financial crisis. In support of her contention, she has also placed before the Court an order of the Division Bench of this Court in the case of M/s Gammon India Limited Vs. State of Assam & Ors. She has further submitted that the petitioner Firm is not operating and the petitioner is going through financial crisis. In support of her contention, she has also placed before the Court an order of the Division Bench of this Court in the case of M/s Gammon India Limited Vs. State of Assam & Ors. [WP(C) No.6059/2010] decided on 05.04.2018. 5. Mr. B. Gogoi has submitted that against an order of the Superintendent of Taxes, any appeal preferred has to be construed to be a first appeal as has been rightly held by the learned Board of Revenue and, therefore, under Section 79(5) of the 2003 Act, appeal cannot be entertained unless such appeal is accompanied by a satisfactory proof of payment of minimum 25% of disputed tax, penalty, if any, imposed and the interest accrued thereon, if any. He has further submitted that he is not raising any issue as to whether the appeal before the learned Board of Revenue is at all maintainable or not and contentions in that regard will be advanced before the learned Board of Revenue as and when the matter is taken up for consideration. However, as, admittedly, it is a first appeal preferred against an order of the Superintendent of Taxes under the provisions of the 2003 Act, it cannot be construed that the learned Board of Revenue has committed any illegality in requiring the petitioner to deposit 25% of the amount due. 6. Mr. Gogoi has contended that the argument advanced by Ms. Gope that the impugned order was passed without jurisdiction on the ground that the learned Chairman of the Board of Revenue had passed the order sitting singly, is entirely misconceived. Relying upon the very same provisions on which Ms. Gope has relied upon, it is submitted that an analysis of the provisions would go to show that for the purpose of admission of the appeal, a single Member of the Board is competent but when a question of disposal of the appeal before the Board comes, it has to be disposed of in the manner as prescribed under the provisions of the Act. The impugned order was passed at the time of consideration of the appeal and since it did not result in disposal of the case, no error is committed by the learned Chairman in passing such order. The impugned order was passed at the time of consideration of the appeal and since it did not result in disposal of the case, no error is committed by the learned Chairman in passing such order. Reliance placed on the judgment of M/s Gammon India Limited (supra) is also contended to be not attracted in the facts and circumstances of the case in as much as the said decision relates to an appeal, which was finally disposed of sitting singly. 7. We have considered the submissions advanced by the learned counsel appearing for the parties and have perused the materials on record. 8. It will be appropriate to first dispose of the contention with regard to the competency of the learned Chairman to pass the order sitting singly. 9. Section 3(2) of the Act lays down that the Board shall consists of 4(four) Members to be appointed by the State Government. It is also provided that in case of any vacancy in the membership of the Board, the Board shall not be deemed to be not duly constituted for the purpose of the Act. Section 3(4) provides that the State Government shall appoint one of the Members of the Board to act as the Chairman. The power of constitution of the Benches is conferred on the chairman and it is provided in Section 3(5) that notwithstanding anything contained in Sub-Section (2), the Chairman of the Board shall be competent to constitute or reconstitute Benches consisting of one or two Members of the Board to dispose of any case or class of cases and the decisions of such Benches shall be deemed to be the decision of the Board. Section 3(5), thus, provides the mechanism of constitution of Benches vesting the power on the Chairman of the Board. The aforesaid provision does not indicate what manner constitution of the Bench has to be made. 10. Section 4 of the Act provides that the Board shall have the powers and jurisdiction to entertain appeals and petitions and revise decisions in revenue cases arising under the provisions of the enactments specified in Schedule-A and shall also have such power and jurisdiction, as may be conferred on it by any other law for the time being in force. 11. Regulation 45 under Chapter-VIII of the Regulation provides for constitution of Benches and powers of Benches. 11. Regulation 45 under Chapter-VIII of the Regulation provides for constitution of Benches and powers of Benches. In Rule 45, a list of Acts are listed along with the jurisdiction of the Assam Board of Revenue and the Bench strength. Relevant extract of Rule 45 reads as follows:- "45. Classes of cases to be heard by Benches. Cases under the following acts will be disposed of by the Benches constituted by the Chairman from time to time in the following manner: Act Jurisdiction Bench XXXX XXXX XXXX" 12. It is to be noted that the 2003 Act is not listed under Regulation 45 of the Regulation. 13. For the purpose of this case, suffice is to say that the impugned order passed by the learned Board did not dispose of the appeal preferred by the petitioner. So far as admission is concerned, it is provided under Regulation 45 as follows:- "(12) Admission Where necessary a Bench may refer the petition to the Chairman who may, at his discretion, refer the petition for hearing by a Division Bench." single 14. Having regard to the above, it is evident that so far as admission is concerned, a Single Member can exercise jurisdiction and, therefore, we find no merit in the contention that the learned Chairman acted without jurisdiction, as he had passed the order sitting singly. The decision relied on by Ms. Gope does not further the case of the petitioner inasmuch as the order passed by the Board had finally disposed of the appeal. As such, the aforesaid case is clearly distinguishable to the facts and circumstances of the present case. 15. What is evident from the materials on record that the appeal preferred before the Board, prima facie, was in respect of an order passed under Section 36 of the 2003 Act, which was passed by the Superintendent of Taxes. The Superintendent of Taxes is lower in rank than the Deputy Commissioner of Taxes. Any appeal preferred by any person aggrieved by an order passed under the 2003 Act by a taxing authority lower in rank than the Deputy Commissioner of Taxes is a first appeal in terms of Section 79 of the 2003 Act. The Superintendent of Taxes is lower in rank than the Deputy Commissioner of Taxes. Any appeal preferred by any person aggrieved by an order passed under the 2003 Act by a taxing authority lower in rank than the Deputy Commissioner of Taxes is a first appeal in terms of Section 79 of the 2003 Act. Though the appeal was purportedly filed under Section 80 of the Act, the learned Board of Revenue was justified in holding that the appeal before the Board to be a first appeal attracting Section 79(5) of the Act and, therefore, direction was issued to deposit 25% of the dues. We do not find any infirmity in the order of the learned Board of Revenue. However, since on the issue of pre-deposit, almost 4(four) years have gone by and the appeal is yet to be considered on merits and since Ms. Gope has submitted that the petitioner's business is closed, we deem it appropriate to direct the petitioner to deposit 10% of the dues within a period of 2(two) months by way of Bank guarantee. If the deposit is not made within a period of 2(two) months, the appeal before the Board of Revenue shall stand dismissed. 16. The writ petition stands disposed of in terms of the above observations and directions.