GADHVI AND CO. Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Present tax appeal, has been preferred by, the appellant-original appellant-dealer challenging the impugned judgment and order dated March 4, 2014 passed by the learned Gujarat Value Added Tax Tribunal, Ahmedabad (hereinafter referred to as "the Tribunal" for convenience) in Second Appeal No. 828 of 2013 for the year 2007-08, by which the learned Tribunal has partly allowed the said appeal preferred by the appellant and has remanded the matter partly to the first appellate authority by quashing and setting aside the orders passed by the assessing officer as well as the appellate authority to the extent of addition in turnover and the order of penalty and directed the first appellate authority to decide the said issue of penalty and issue of addition after hearing the appellant afresh. Feeling aggrieved and dissatisfied with the assessment order passed by the assessing officer, the appellant preferred appeal before the first appellate authority along with a request to waive pre-deposit. It appears that the first appellate authority directed the appellant to deposit a total sum of Rs. 1,05,400 against total liability of tax, interest and penalty at Rs. 5,27,036. It appears that the appellant did not comply with the order of pre-deposit and therefore, by order dated August 23, 2013, the first appellate authority dismissed the said appeal on non-compliance of the order of pre-deposit.

(2.) Feeling aggrieved and dissatisfied with the order passed by the first appellate authority dismissing the appeal on non-payment of pre-deposit, the appellant preferred an appeal before the learned Tribunal. It appears from the appeal memo that the appellant set out the grounds on merits also. However, basically the order challenged before the learned Tribunal was the order passed by the first appellate authority dismissing the appeal on non-compliance of the order of pre-deposit. It appears that in the second appeal the appellant also submitted application for waiver of pre-deposit. It was pointed out that the appellant had already deposited a sum of Rs. 35,000 by way of deposit and subsequently the Department recovered a further sum of Rs. 10,000 by attaching the bank account of the appellant. Thus, the appellant deposited total sum of Rs. 45,000. At the time when his application for waiver of pre-deposit was taken up by the Tribunal, it appears that by order dated November 13, 2013, the Tribunal directed the appellant to pay balance amount of Rs. 60,400 by way of pre-deposit within a period of one month and further directed that on payment of the aforesaid amount, the appeal stands admitted. That for compliance of the said order and for production of the chalan, the hearing of the appeal was adjourned to December 13, 2013. It appears that thereafter as directed by the learned Tribunal, the appellant deposited further sum of Rs. 60,400 as pre-deposit. That thereafter the appeal came up for hearing before the learned Tribunal. It is the case on behalf of the appellant that as such the learned advocate appearing on behalf of the appellant requested the learned Tribunal to remand the matter to the first appellate authority as its earlier appeal for the earlier assessment year was pending before the first appellate authority. It is also the case on behalf of the appellant that as the second appeal before the learned Tribunal was against the order passed by the first appellate authority dismissing the appeal on non-deposit of pre-deposit, and as the amount of pre-deposit was already deposited, it was requested to remand the matter to the first appellate authority. Despite the above, the learned Tribunal has gone into the merits of the case and has partly allowed the appeal and has quashed and set aside the assessment order to the extent of addition in turnover and penalty and has remanded the matter to the first appellate authority to decide the issue of penalty and issue of addition afresh.

(3.) Feeling aggrieved by and dissatisfied with the impugned order passed by the learned Tribunal, the appellant has preferred the present tax appeal.