IMPORTANT POINTS
Section 62(5) is valid.
Discretion cannot go contrary to express provision of law.

JUDGMENT :

UDAY UMESH LALIT, J.

1. Special leave to appeal granted.

2. These appeals challenge the judgment and order dated 23.12.2015 passed by the High Court of Punjab and Haryana at Chandigarh in Civil Writ Petition No.26920 of 2013 and all connected matters; and raise questions about the validity of Section 62(5) of the Punjab Value Added Tax Act, 2005 (hereinafter referred to as “the PVAT Act”).

3. The text of Section 62 of the PVAT Act is as under:

“62. First Appeal (1) An appeal against every original order passed under this Act or the rules made thereunder shall lie, -

(a) if the order is made by a Excise and Taxation Officer or by an officer-in-charge of the information collection centre or check post or any other officer below the rank of Deputy Excise and Taxation Commissioner, to the Deputy Excise and Taxation Commissioner;

(b) if the order is made by the Deputy Excise and Taxation Commissioner, to the Commissioner;

(c) if the order is made by the Commissioner or any officer exercising the powers of the Commissioner, to the Tribunal.

(2) An order passed in appeal by a Deputy Excise and Taxation Commissioner or by the Commissioner or any officer on whom the powers of the Commissioner are conferred, shall be further appealable to the Tribunal.

(3) Every order of the Tribunal and subject only to such order, the order of the Commissioner or any officer exercising the powers of the Commissioner or the order of the Deputy Excise and Taxation Commissioner or of the designated officer, if it was not challenged in appeal or revision, shall be final.

(4) No appeal shall be entertained, unless it is filed within a period of thirty days from the date of communication of the order appealed against.

(5) No appeal shall be entertained, unless such appeal is accompanied by satisfactory proof of the prior minimum payment of twenty-five per cent of the total amount of additional demand created, penalty and interest, if any.

Explanation: For the purposes of this sub-section “additional demand” means any tax imposed as a result of any order passed under any of the provisions of this Act or the rules made thereunder or under the Central Sales Tax Act, 1956 (Act 74 of 1956).

(7) In deciding an appeal, the appellate authority, after affording an opportunity of being heard to the parties, shall make an order –

(a) affirming or amending or cancelling the assessment or the order under appeal; or

(b) may pass such order as it deems to be just and proper.

(8) The appellate authority shall pass a speaking order while deciding an appeal and send copies of the order to the appellant and the officer whose order was a subject matter of appeal.”

4. The questions involved in the matters were framed by the High Court as under:-

“(a) Whether the State is empowered to enact Section 62(5) of the PVAT Act?

(b) Whether the condition of 25% pre-deposit for hearing first appeal is onerous, harsh, unreasonable and, therefore, violative of Article 14 of the Constitution of India?

(c) Whether the first appellate authority in its right to hear appeal has inherent powers to grant interim protection against imposition of such a condition for hearing of appeals on merits?”

5. Since number of petitions were filed challenging the validity of aforesaid Section 62(5), the High Court had considered CWP No.26920 of 2013 as the lead matter and the facts pertaining to said petition were set out by the High Court in detail in para 2 of its decision as under:-

“The petitioner – Punjab State Power Corporation Limited is a statutory body constituted under the Electricity (Supply) Act, 1948. It is engaged in generation, distribution and supply of electric energy/electricity power and other allied material to the consumers viz. domestic, commercial and industrial consumers in the State of Punjab and for that purpose, it is governed by the Indian Electricity Act, 1910 and Electricity (Supply) Act, 1948 as well as the Rules and Regulations framed thereunder. The petitioner had been filing returns as pr