JUDGMENT M.S. Ramachandra Rao, J. - These two Writ Petitioners are filed by the same petitioner against the Commercial Tax Department of the State of Telangana; and the issues raised therein are interconnected. So they are being disposed of by this common order. 2. Petitioner is an organization in the co-operative sector with a net membership of around 552 co-operative societies across the State of Telangana. It was nominated as the Nodal Agency for procurement, maintenance of buffer-stocks and distribution of Fertilizers to market the same at MRP in the State of Telangana. It also supplies quality seeds to the farmers under various subsidy schemes provided by the Government of India as well as by the Government of Telangana. It also provides storage and custom services to the farmers through its go-downs and it has also setup Agri based units to get value addition for the produce of the farmers and to generate rural employment and produce "Nandi Brand" cattle feed. 3. It is registered as a dealer under the Telangana VAT Act, 2005 and it was an assessee on the rolls of the 2nd respondent initially and is presently an assessee on the rolls of the 1st respondent after the introduction of the GST Act, 2017. WP.No.12015 of 2020: 4. On an authorization issued by the Deputy Commissioner(CT), Abids Division, Hyderabad, the 3rd respondent conducted audit on the petitioner's company, which resulted in passing of an assessment order in Form VAT 305 dt.31.10.2007 for the tax period October, 2005 to March, 2007. In this order, the Assessing Authority disallowed the input tax credit amounting to Rs.2,08,56,835/-. 5. This was questioned by the petitioner by way of appeal before the 4th respondent. 6. The said appeal was dismissed by the 4th respondent on 18.01.2008. 7. Thereafter, the petitioner preferred an appeal before the Telangana VAT Appellate Tribunal in TA.No.427 of 2008. 8. The Tribunal allowed the said appeal on 18.02.2016 and remanded the case to the Assessing Authority to verify the claim of the petitioner and pass a fresh assessment order. 9. Thereafter, the 1st respondent passed reassessment order dt.03.09.2019 disallowing the input tax credit of Rs.1,62,90,794/-; and after adjusting the 50% of pre-deposit already made by the petitioner at the time of filing of appeal, held that Rs.81,44,997/- is payable towards VAT by the petitioner. 10. 9. Thereafter, the 1st respondent passed reassessment order dt.03.09.2019 disallowing the input tax credit of Rs.1,62,90,794/-; and after adjusting the 50% of pre-deposit already made by the petitioner at the time of filing of appeal, held that Rs.81,44,997/- is payable towards VAT by the petitioner. 10. This was questioned by the petitioner in an appeal before the 4th respondent, but the petitioner though obligated to deposit 12.5% of the disputed tax as per proviso (2) of Section 31(1) of the Act, did not do so on the ground that already 50% of the earlier disputed tax had been deposited by it before the Tribunal in the earlier round of litigation. 11. The 4th respondent rejected the appeal vide. ADC order No.445 dt.29.02.2020 on the ground that the petitioner, when it filed the appeal before him, is required to furnish proof of payment of prescribed amount as per the proviso (1) to Section 31(1) of the Act, but in the papers filed along with the appeal by the petitioner on 03.10.2019, petitioner had failed to furnish proof of payment of 12.5% of the difference of tax assessed by the authority and the tax admitted by them; that notice was issued to the petitioner to furnish said proof and opportunity for personal hearing was also given, but the petitioner did not file any representation. 12. The 4th respondent relied on the judgment of the Supreme Court in M/s S.E.Graphites Private Limited v. State of Telangana & Others, Civil Appeal No.7574 of 2014 & Batch dt.10.07.2019 wherein the Supreme Court had held that though it is open to the assessee to file an appeal within the statutory period of limitation provided there for, and later on, deposit the specified tax dues, he must do so before the appeal is taken up for consideration by the Appellate Authority for the first time, be it for condonation of delay in filing the appeal and/or to admit it on merits or otherwise. The Supreme Court had held that proof of such payment having been made can be produced at that time, failing which the Appellate Authority will have no other option but to reject the appeal on that count. It declared that the Appellate Authority has no power to extend the time to deposit the specified tax dues. 13. The Supreme Court had held that proof of such payment having been made can be produced at that time, failing which the Appellate Authority will have no other option but to reject the appeal on that count. It declared that the Appellate Authority has no power to extend the time to deposit the specified tax dues. 13. The 4th respondent accordingly held that since the petitioner failed to furnish proof of payment of prescribed amount of 12.5% of the difference of tax assessed and the tax admitted by them as prescribed under Section 31(1) of the Act either at the time of filing of the appeal or subsequently, when the appeal was posted for hearing on admission, the appeal preferred by the petitioner cannot be admitted. The 4th respondent thus dismissed the appeal. 14. Assailing the same, WP.No.12015 of 2020 has been field by the petitioner. WP.No.12009 of 2020 15. After the order was passed by the 1st respondent on 03.09.2019 disallowing the input tax credit of Rs.1,62,90,794/-, a notice in Form VAT 203A was issued on 06.09.2019 to the petitioner by the 1st respondent proposing to levy penalty of Rs.40,72,699/-. In the said notice, the said penalty is proposed to be levied under Section 53(1)(2) of the Act, which was 25% of the under-declaration of tax of Rs.1,62,90,794/-. 16. Objections to the same were filed by the petitioner on 14.09.2019 and its Chartered Accountant also appeared for personal hearing on 25.09.2019. 17. By order No.43687, dt.25.09.2019, the 1st respondent rejected the objections and confirmed the penalty of Rs.40,72,699/- and directed the petitioner to pay the same within 30 days. 18. Consequent thereto, a demand notice dt.16.03.2020 was served on the petitioner demanding Rs.81,54,997/- towards VAT and Rs.40,72,699/- towards penalty, totaling Rs.1,22,17,696/- and the petitioner's banker i.e., the HDFC Bank (5th respondent) was directed to hold lien under Section 79 of the TSGST Act,2017 on the above amount as a garnishee and remit the said amount by DD/pay order/NEFT to the 1st respondent. 19. Assailing the order AO.No.43687 dt.25.09.2019 levying penalty on the petitioner, WP.No.12009 of 2020 is filed by the petitioner. Contentions of the petitioner in WP.No.12015 of 2020 20. 19. Assailing the order AO.No.43687 dt.25.09.2019 levying penalty on the petitioner, WP.No.12009 of 2020 is filed by the petitioner. Contentions of the petitioner in WP.No.12015 of 2020 20. In regard to WP.No.12015 of 2020, wherein the order dt.29.02.2020 of the 4th respondent rejecting the appeal filed by the petitioner against the order dt.03.09.2019 passed by the 1st respondent is challenged, it is the contention of the petitioner that: a) the 2nd proviso to Section 31(1) of the Act obligates the petitioner to deposit 12.5% of the disputed tax for admission of the appeal; b) without noticing the fact that already 50% of the disputed tax had already been paid while filing the appeal before the Tribunal in the 1st round of litigation, the appeal was rejected by the 4th respondent; c) that the 4th respondent should have taken note of the net credit carried forward amount of Rs.12,75,51,300/- and ought to have adjusted the 12.5% of the disputed tax, amounting to Rs.20,36,350/-; and d) the petitioner therefore need not have to deposit the 12.5% of the disputed tax while filing the appeal before the 4th respondent. Consideration by the Court RE: WP.No.12015 of 2020 21. But the petitioner itself does not dispute that the 50% of the pre-deposit made by the petitioner at the time of filing of the appeal before the Tribunal was adjusted by the 1st respondent at the time when the reassessment order dt.03.09.2019 was passed and after giving such credit to the pre-deposit already made, the tax liability of the petitioner had been reduced from Rs.1,62,90,794/- to Rs.81,44,997/-. Therefore, it cannot be said that the 1st respondent did not take into account the 50% of the pre-deposit already made by the petitioner when it had filed appeal before the Tribunal in the first round of litigation. 22. Moreover, proviso (2) of Section 31(1) of the Act requires payment of 12.5% of the disputed tax and the option of "adjustment" which the petitioner had sought, is not permitted by the Act. 23. Therefore, while filing the appeal before the 4th respondent against the order of the 1st respondent, petitioner was required to deposit 12.5% of Rs.81,45,797/- i.e. Rs.10,18,125/-. 24. It is also not in dispute that while filing the appeal before the 4th respondent against the order dt.03.09.2019 passed by the 1st respondent, no amount towards predeposit was made. 25. 23. Therefore, while filing the appeal before the 4th respondent against the order of the 1st respondent, petitioner was required to deposit 12.5% of Rs.81,45,797/- i.e. Rs.10,18,125/-. 24. It is also not in dispute that while filing the appeal before the 4th respondent against the order dt.03.09.2019 passed by the 1st respondent, no amount towards predeposit was made. 25. Therefore, the 4th respondent cannot be said to have committed any error of law in rejecting the appeal filed by the petitioner. 26. According to the petitioner, there was a net credit carry forward amount of Rs.12,75,51,300/- out of which the petitioner contends that the 4th respondent should have adjusted the amount required to have been made by the petitioner as pre-deposit while preferring appeal before the 4th respondent. 27. The said net credit claimed by the petitioner is regarding to the assessment under the VAT Act, 2005 for the period 01.04.2012 to 31.05.2014 as can be seen from the petitioner's letter, Ex.P5 dt.30.09.2019. 28. But as stated above, the Act requires a pre-deposit as per the language in the proviso(2) of sub-Section (1) of Section 31 of the Act and does not permit any adjustments. 29. No authority is cited by the petitioner in support of petitioner's contention that adjustment of any net credit of tax is required to be made by the appellate authority while considering any appeal filed under Section 35 of the Act. 30. Therefore, we do not find any merit in WP.No.12015 of 2020 and it is accordingly dismissed. Contentions of the petitioner in WP.No.12009 of 2020 31. Coming to WP.No.12009 of 2020, where the petitioner has assailed the assessment order No.43687 dt.25.09.2019 levying penalty of Rs.40,72,699/- on the petitioner as a consequence to the re-assessment order dt.03.09.2019 passed by the 1st respondent, the principal contention of the petitioner is that the order imposing penalty was barred by limitation and that the petitioner was under an impression that no appeal need to be filed and therefore it had not chosen to file any appeal against the said order. 32. It is contended that by the time petitioner realized that an appeal needs to be filed, the limitation period of 30 days prescribed for filing the appeal under sub-Section (1) of Section 31 of the Act had expired. 33. 32. It is contended that by the time petitioner realized that an appeal needs to be filed, the limitation period of 30 days prescribed for filing the appeal under sub-Section (1) of Section 31 of the Act had expired. 33. Petitioner contends that originally the proviso(1) to sub-Section (1) of Section 31 of the Act enabled the 1st appellate authority to admit the appeal by condoning the delay of further period of 30 days in addition to the initial period of 30 days, provided, sufficient cause was shown for condoning the delay, but later by Act 26 of 2017, the 1st proviso was omitted. 34. According to the petitioner, certain matters are pending before this Court wherein such omission has been challenged and interim orders had been granted in such cases. Reference is made to order dt.10.12.2019 in WP.No.27311 of 2019. 35. Much case law has been referred to, in the affidavit filed in support of the writ petitions taking the plea relating to the validity of omission of the proviso(1) to Section 31(1) of the Act and it is contended that pending adjudication of the said issue, the garnishee order issued by the 1st respondent on 16.03.2020 should be suspended, and the penalty order passed by the 1st respondent on 25.09.2019 in AO.No.43687 should also should be set aside. Contentions of the Sri J.Anil Kumar in WP.No.12009 of 2020 36. Sri J.Anil Kumar, Special Counsel for Commercial Taxes appearing for respondents states that petitioner had not filed an appeal under Section 31 of the Act against the assessment order No.43687 dt.25.09.2019 till date; and that the omission of the 1st proviso to Section 31(1) of the Act or challenge to such omission does not help the petitioner in any manner, because as of date more than 60 days from the date of the said order has already elapsed. 37. According to him, even if the Writ Petition is allowed and the omission of the 1st proviso to Section 31(1) of the Act deleting the power to condone the further period of 30 days of delay in filing the appeal by the 1st appellate authority is held to be invalid in law, a delay of more than 60 days has already occurred by the date of filing of the writ petitions, which cannot be said to be condonable under any circumstances. Consideration by the Court RE: WP.No.12009 of 2020.: 38. Consideration by the Court RE: WP.No.12009 of 2020.: 38. We find force in the said contention of the learned Government Pleader. 39. Had the petitioner preferred an appeal before the 4th respondent within the period of 60 days from the date of receipt of penalty order, AO.No.43687 dt.25.09.2019, but beyond the period of 30 days from the date of receipt of the said order, the case of petitioner could have been considered for grant of relief by this Court, but when the petitioner had, from 25.09.2019 till 30.07.2020, not filed an appeal at all, then petitioner's challenge to the omission of the 1st proviso to Section 31(1) of the Act by Act 26 of 2017 would be of no avail. 40. Therefore, we are of the opinion that the petitioner had a remedy of appeal under sub-Section (1) of Section 31 of the Act against the penalty order dt.25.09.2019 passed by the 1st respondent; and the petitioner did not avail of the remedy at all; and the case of the petitioner does not fall within any of the exceptions to the rule permitting entertainment of writ petitions under Article 226 of the Constitution of India in spite of existence of an alternative remedy, and therefore we are not inclined to entertained the Writ Petition. 41. Accordingly, WP.No.12009 of 2020 is also dismissed leaving open the question about the validity of Act 26 of 2017 to be adjudicated in a separate proceeding. 42. Thus, both the Writ Petitions are dismissed. No order as to costs. 43. Consequently, miscellaneous petitions, pending if any, shall stand closed.