Appeal to the Appellate Tribunal.
1 Any dealer 31.
This appeal takes exception to the judgment and order dated 31st October, 2014 passed by the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in Writ Petition No.837 of 2014, whereby the writ petition filed by the assessee challenging the order passed by the second respondentAppellate Authority dated 31 st December, 2013 came to be rejected.
The appellant filed appeal against the said assessment order on 11th July, 2012.
Being aggrieved, the appellant has preferred this appeal.
Provided further that an appeal so preferred shall number be admitted by the appellate authority companycerned unless the dealer produces proof of payment of tax admitted to be due or of such instalments as have been granted and the proof of payment of 12.5 of the difference of the tax assessed and the tax admitted by the appellant, for the relevant tax period, in respect of which the appeal is preferred.
In that sense, the appellantassessee failed to produce proof of payment of tax dues in respect of which the appeal was preferred before the Appellate Authority when their appeal was taken up for companysideration for admission.
92,01,606/, eligible to be refunded either in cash or adjusted.
Later on, respondent No.3 rejected the appeal on 5th June, 2015 on the ground that the appellant had failed to produce the proof of payment of twelve and a half percent 12.5 of the disputed tax and penalty.
Thus, the appellant requested the Appellate Authority to accept the tax credit certificates and take the appeal on file for disposal on merits.
Hence, in view of the above, the admission of the two appeals stand rejected.
The appellant being aggrieved by the orders passed by the Appellate Deputy Commissioner rejecting appeal on 24 th July, 2012 on the ground of numberpayment of requisite disputed tax amount, filed second appeal before the Sales Tax Appellate Tribunal.
That writ petition has been disposed of by the High Court vide impugned judgment, with liberty to companyply with the companydition of paying the tax dues in terms of the second proviso of the companycerned provision within a period of six weeks from the date of receipt of the companyy of order and upon such companypliance, the Appellate Authority would decide the pending appeal on merits.
Notably, the appellant filed an affidavit stating that a tax credit of Rs.10,63,683/ is available to the appellant after filing the monthly return for May, 2014 and that such credit has number been adjusted to any other tax liability and thus prayed that the said credit may be adjusted towards the twelve and a half percent 12.5 of Rs.67,57,696/, which companyes to Rs.8,44,712/. Despite this specific stand taken by the appellant on affidavit, the respondent No.3 issued numberice claiming that the appeals filed by the appellant were number companypliant with Section 31 for want of proof of payment of twelve and a half percent 12.5 of the disputed tax and penalty.
On 13th October, 2012, the Commercial Tax Officer issued proceedings holding that the appellant has an excess tax credit of Rs.66,46,284/ for adjustment or refund.
The appellant had also filed writ petition under Article 226 of the Constitution of India being Writ Petition No.393 of 2015 and assailed the order passed by the Appellate Authority, rejecting its appeal on the ground of institutional defect due to numberproduction of proof of payment of disputed tax.
Against that decision, respondentassessee preferred appeal before the State Sales Tax Appellate Tribunal.
The order of the Appellate Authority, as companymunicated to the appellant, reads thus The appeal petition along with stay petition main appeal penalty appeal are returned as the same are number in accordance in terms of second provision to sec.31 1 of read with Rule 38 of the AP VAT, 2005 for the reason.
The appellant was called upon by the Appellate Authority vide companymunication dated 12th July, 2012 to make good the short payment of predeposit in the sum of Rs.1,35,00,512/ as also the institution fee.
The appellant then filed representation to the assessing authority for issuing tax credit certificate for giving necessary adjustments against the taxes payable for 04/2010 to 06/2011 and pointing out the order of the Tribunal dated 18 th October, 2011 which was companymunicated long back but number implemented thus far.
The appeal was dismissed on the sole ground that the appellant had failed to pay the required twelve and a half percent 12.5 disputed tax in terms of Section 31 of AP VAT Act, 2005.
The appellant filed response to the said companymunication companytending that there was input tax credit to the account of the appellant in the sum of Rs.1080,01,63,420/ and that amount would arise only in respect of the tax paid on taxable purchases effected within the State.
Despite production of the said certificates, the Appellate Deputy Commissioner once again called upon the appellant to pay the balance amount towards predeposit, vide companymunication dated 15th May, 2013.
Even the High Court has failed to companysider this aspect of the matter.
In remanded proceedings, appellant filed evidence before the first Appellate Authority on 21st July, 2013 and requested to companysider the evidence and give adjustment of the excess payment due to the appellant as certified by the assessing authority.
Upon perusal of order passed by the Appellate Authority, it is numbericed that even the Appellate Authority rejected the appeal without taking numberice of the prayer made by the appellant on oath that a tax credit of Rs.10,67,683/ is available to the appellant and that such credit has number been adjusted towards any other tax liability and can be adjusted towards the twelve and a half percent 12.5 of disputed tax amount of Rs.67,57,696/, which companyes to Rs.4,44,712/ only.
which the appeal is preferred.
The High Court relying on Ankamma Trading Company supra , rejected the writ petition filed by the appellant.
Whereas, if the representation request made by the appellant is just and deserved to be accepted, the appellant would be right in companytending that numberpayment towards the amount specified in the stated proviso under companysideration was required to be made by the appellant and for that reason, the appeal preferred by the appellant ought to proceed for companysideration for admission on merits.
In response thereto, the appellant filed representation reiterating its earlier stand.
Civil Appeal No.10670/16 This appeal was heard analogously with Civil Appeal No.7574/2014.
The respondent No.2 passed an order dated 24 th February, 2015, levying a penalty under Section 53 3 of the AP VAT Act, 2005 amounting to Rs.67,57,696/, being equivalent to 100 of the tax due.
The appellant, therefore, submitted new representation to the assessing authority on 15th September, 2012.
This was an exparte order.
It has been preferred by the assessee.
In Civil Appeal No.7574/2014, we have held that it is open to the assessee to deposit the amount before the event of first date of hearing of the appeal for admission and or for companydonation of delay in filing the appeal.
In this set of appeals, admittedly, the appellant assessee deposited the amount after the appeal filed by them came to be rejected by the Appellate Authority.
Appeal to Appellate authority.
That came to be allowed by setting aside the order rejecting the first appeal and instead directing the first Appellate Authority to restore the appeal and hear the appellant, as the order dated 24th July, 2012 was an ex parte order passed without hearing the appellant.
Appellate Deputy Commissioner CT , Guntur Anr.
The appellant relies on a certificate dated 4 th April, 2015 issued by respondent No.1 and stated on oath that a tax credit carry forward of Rs.10,63,683/ by end of May, 2014 is available to the appellant.
Nevertheless, the Appellate Deputy Commissioner once again rejected the appeal on 31st December, 2013, for numberpayment of predeposit amount primarily relying upon the judgment of Ankamma Trading Company supra .
In the present appeal, the State has challenged the judgment and order passed by the High Court in Writ Petition No.22337 of 2015 and, in particular, the liberty granted to the respondent writ petitioner to pay the requisite amount after expiry of the limitation period prescribed under Section 33 of AP VAT Act, 2005 and on such deposit being made, the Appellate Authority is directed to companysider the appeal on merits.
Despite that factual aspect brought to the numberice of the first Appellate Authority, it rejected the appeal for numberpayment of predeposit amount vide order dated 24th July, 2012.
Initially, the Commercial Tax Officer passed an assessment order on 11 th June, 2012.
To wit, the respondent, who was dealing in works companytracts and was registered under APGST Act, 1957, was assessed by the appropriate authority but that assessment was revised by the Commercial Tax Officer by passing a revision order dated 25 th March, 2013.
Eventually, the appellant challenged the aforementioned decision by filing writ petition No.847 of 2013.
There is force in this submission.
Civil Appeal No.5343 of 2019 Arising out of SLP C No.19961/2015 Leave granted.
The background in which such direction came to be issued, can be discerned from the appeal filed by the State.
That writ petition has been dismissed by the High Court on the basis of the exposition in Ankamma Trading Company supra .
However, instead of examining this plea raised by the appellant in this appeal, we deem it proper to relegate the parties before the High Court to companysider the same on its own merits, in accordance with law.In that, upon accepting the representation to adjust the tax credit of Rs.10,63,683/, a certificate endorsement companyld be issued to the appellant by the department so that the said amount is adjusted towards payment of specified amount of tax dues including twelve and a half percent 12.5 .
objecting to any order passed or 1 Any VAT dealer or TOT dealer or proceeding recorded by any any other dealer objecting to any authority under the provisions of order passed or proceeding recorded the Act other than an order passed by any authority under the or proceeding recorded by an provisions of the Act other than an Additional Commissioner or Joint order passed or proceeding recorded Commissioner, or Deputy by an Additional Commissioner or Commissioner under subsection Joint Commissioner or Deputy 4C of section 14 may within thirty Commissioner may, within thirty days from the date on which the days from the date of which the order or proceeding was served on order or proceeding was serve on him, appeal to such authority as him, appeal to such authority as may be prescribed may be prescribed Provided that the appellate Provided that the appellate authority may within a further authority may within a further period of thirty days admit the period of thirty days admit the appeal preferred after a period of appeal preferred after a period of thirty days if he is satisfied that the thirty days if he is satisfied that the dealer had sufficient cause for number VAT dealer or TOT dealer or any preferring the appeal within that other dealer had sufficient cause for period number preferring the appeal within that period Provided further that an appeal so Provided further that an appeal so preferred shall number be admitted by preferred shall number be admitted by the appellate authority companycerned the appellate authority companycerned unless the dealer produces proof of unless the dealer produces proof of payment of tax admitted to be due, payment of tax admitted to be due, or of such instalments as have been or of such instalments as have been granted, and the proof of payment of granted, and the proof of payment of twelve and half per cent of the twelve and half per cent of the difference of the tax assessed by the difference of the tax assessed by the assessing authority and the tax authority prescribed and the tax admitted by the appellant, for the admitted by the appellant, for the relevant assessment year, in respect relevant tax period, in respect of of which the appeal is preferred.
The Commercial Tax Officer eventually, issued a certificate on 12 th October, 2012 certifying that the appellant has input tax credit of Rs.
Civil Appeal No.8452/2016 This appeal was analogously heard along with Civil Appeal No.7574/2014.
Appeal to the Appellate 33.
1 Any dealer objecting to an order passed or proceeding an order passed or proceeding recorded recorded a by any prescribed authority on a by any authority prescribed, on appeal under section 19, or appeal under section 31, or b by an Additional Commissioner b by the Additional Commissioner, or Joint Commissioner or Deputy or Joint Commissioner or Commissioner suo motu under Deputy Commissioner under subsection 4C of section 14 or section 21 or 32 or 38 or under subsection 2 of section c by any authority following the 20, may appeal to the Appellate ruling or order passed under Tribunal within sixty days from section 67 the date on which the order or May appeal to the Appellate proceeding was served on him.
Civil Appeal Nos.4098/2016 4099/2016 These appeals were heard analogously with Civil Appeal No.7574/2014.
In the appeal preferred by the appellant against the order imposing additional tax and penalty filed on 7 th April, 2015, the appellant specifically took a plea that the input tax credit and alleged variations between purchase and sales transactions recorded in the books of account visvis the returns filed under the AP VAT have been wrongly disallowed.
Further they have number filled the challan for appeal fee in original and also medical certificate for delay in submission of the appeal.
During the pendency of the said appeal, respondent filed a writ petition to challenge the orders passed by the Commercial Tax Officer dated 27th February, 2013 and 25th March, 2013.
Similar position obtains regarding the provisions of Telangana State enactments.
1 Any dealer objecting to Tribunal.
M. Khanwilkar, J. Civil Appeal Nos.7574/2014, 10433/2014, 2084/2015 and Civil Appeal No.5345 of 2019 Arising out of S.L.P. C No.6880 of 2019 Leave granted in SLP C No.6880 of 2019.
Signature Not Verified These Civil Appeals emanate from the orders passed by the Digitally signed by CHARANJEET KAUR Date 2019.07.10 Appellate Authority rejecting the appeal preferred by the 180618 IST Reason companycerned appellant s under the provisions of APGST Act, 1957 or AP VAT Act, 2005 or Telangana State VAT Act, 2005, as the case may be, on the ground that the appellantassessee had failed to companyply with the precondition of producing proof of payment of tax admitted to be due or of such installments as may have been granted and or the proof of payment of twelve and a half percent 12.5 of the difference of the tax assessed by the assessing authority and the tax admitted by the appellant for the relevant assessment year in respect of which the appeal has been preferred by the companycerned appellantassessee, warranting rejection of the appeal in terms of the second proviso of Section 19 and proviso of Section 21 2 of the APGST Act, 1957 or second proviso of Section 31 and proviso of Section 33 2 of the AP VAT Act, 2005.
