State of Gujarat vs P.S.L. Limited

Mukesh R. Shah, J.—As common question of law and facts arise in both the appeals, they are disposed of by this common judgment and order. Feeling aggrieved and dissatisfied with the common impugned judgment and order passed by the learned Gujarat Value Added Tax Tribunal, Ahmedabad (hereinafter referred to as "the Tribunal"), dated September 27, 2012, in Second Appeal Nos. 53 and 54 of 2011, the common appellant-Department has preferred the present tax appeals to consider the following common substantial questions of law:

"4. . . . .

(A) Whether on the facts and in the circumstances of the case, the assessing authority has rightly calculated tax exemption limit and assessed tax, in light of clause 20(iii) of entry 140 of the Schedule under section 49(2) of the Gujarat Sales Tax Act, 1969, keeping in mind amended section 8(5) of the Central Sales Tax Act, 1956 which came into effect from May 11, 2002?

(B) Is the present opponent is not liable to produce statutory forms C to claim concessional rate of tax, after amending section 8(5) with effect from May 11, 2002?

(C) Any other substantial question of law as may be deemed fit by the honourable High Court may kindly be framed?

(D) Whether the honourable Tribunal erred in adjudicating the issue of interpretation of entry 140 of notification under section 49(2) despite the fact that the sole jurisdiction to interpret is vested with the State Level Committee?

(E) Whether the honourable Tribunal erred in adjudicating the issue on merits despite the fact that the first appellate authority dismissed the appeal on the ground of the failure to pay pre-deposit?"

At the outset it is required to be noted that against the assessment order passed by the adjudicating authority, the common respondent, herein, preferred appeals before the first appellate authority, i.e., the Joint Commissioner, and the learned Joint Commissioner, the first appellate authority, dismissed the said appeals without deciding the same on merits, solely on the ground that the respondents had not deposited the entire amount demanded under the respective assessment orders.

Feeling aggrieved and dissatisfied with the orders passed by the first appellate authority dismissing the appeals, on the ground of non-deposit of the amount of pre-deposit, the respondent preferred appeal before the learned Tribunal. However, though, both the appeals preferred by the respondent, herein, were against the orders passed by the first appellate authority, dismissing the appeals solely on the ground of non-deposit of the amount of pre-deposit, the learned Tribunal entered into the merits of the matter and by the impugned common judgment and order has decided the appeals on merits, without passing any order of dispensing with the requirement of depositing the amount of pre-deposit, as required under section 73(4) of the Gujarat Value Added Tax Act, 2003. Therefore, one of the grounds, which is raised by the common appellant is that the learned Tribunal has materially erred in adjudicating the issues on merits, despite the fact that the first appellate authority dismissed the appeals on the ground of failure to deposit the amount of pre-deposit.

After the appeals were argued for sometime by Shri Jaimin Gandhi, learned Additional Government Pleader appearing on behalf of the common appellant, and Shri P.C. Joshi, learned advocate, appearing on behalf of Shri Manish K. Kaji, learned advocate for the respondents, and considering the fact that the appeals before the learned Tribunal were against the order passed by the first appellate authority, dismissing the appeals on non-deposit of the amount of pre-deposit, Shri Joshi has stated at Bar that the common judgment and order passed by the learned Tribunal be quashed and set aside and the matters be remanded to the learned Tribunal for its consideration afresh in accordance with law and on merits and bearing in mind that the appeals before the Tribunal were against the orders passed by the first appellate authority, dismissing the appeals on the ground of non-deposit of the amount of pre-deposit. It is also requested to make suitable observations that on remand the learned Tribunal to dispose of the appeals afresh in accordance with law and on merits within some stipulated time.

In view of the above, Shri Gandhi, learned Additional Government Pleader appearing on behalf of the common appellant, does not invite any further reasoned order on the other issues. We are, therefore, not passing any further reasoned order, while quashing and setting aside the impugned common judgment and order passed by the learned Tribunal and remitting the matters to the Tribunal for its consideration afresh in accordance with law and on merits. Under the circumstances, without further entering into the merits of the case and or expressing anything on merits and in view of the aforesaid stand taken by the learned advocates appearing on behalf of the common appellant and respondent, the impugned judgment and order passed by the Tribunal, dated September 27, 2012, in Second Appeal Nos. 53 and 54 of 2011 is, hereby, QUASHED and set aside and the learned Tribunal is directed to consider the aforesaid appeals afresh in accordance with law, bearing in mind that the appeals before the learned Tribunal were against the order passed by the first appellate authority, which dismissed the appeals on the ground of non-deposit of the amount of pre-deposit, as well as to consider the provisions of section 73(4) of the Act, more particularly, proviso to the aforesaid section. The aforesaid exercise shall be completed within a period of THREE MONTHS from the date of receipt of this order. Both the appeals are allowed to the aforesaid extent and the matters are REMANDED to the learned Tribunal for its consideration afresh in accordance with law and on merits, bearing in mind the observations made, hereinabove. Registry is directed to send the writ of this order to the learned Tribunal forthwith, but, not later than AUGUST 28, 2014. There shall be no order as to costs.