JUDGMENT :

We have heard learned counsel for the parties.

2. The sole issue which arises for consideration is as to whether the appeal preferred by an Assessee under Section 72 of the Bihar Value Added Tax Act 2005 (hereinafter referred to as the Act) can be heard and decided on merits without the petitioner complying with the order passed for deposit of an amount under the provisions of Rule 46 of the Bihar Value Added Tax Rules 2005 (hereinafter referred to as the Rules).

3. Petitioner has prayed for the following relief(s).

“1. That the present writ application has been filed for quashing of part of the order dated 22.02.2021 passed by the Additional Commissioner of State Taxes [Appeals] Central Division Patna [hereinafter referred to as the appellate authority for short'] in Appeal Case Number ST/SL-1/2020-2021 whereby onerous condition of payment of Rs. 27,15,208/-being 40% of the disputed tax along with additional sum of Rs. 1,35,38,175/-being 30% of penalty and interest has been demanded from the petitioner for the financial year 2014-2015 against grant of interim order of stay of the rest amount in demand which is in teeth of the law laid down by this honourable court in the matter of CWJC number 6124 of 2019 (Samsung India Electronics Private Limited Versus The State of Bihar And Others) and for a direction upon the respondent appellate authority to decide the appeal on merits within a time frame and for grant of any other relief or reliefs to which the petitioner is found entitled in the facts and circumstances of this case.”

4. Sri Vikash Kumar, learned Standing Counsel 11, appearing for the respondents, clarifies that perhaps the present petition has become infructuous with time.

5. On the other hand, Sri Gautam Kumar Kejriwal, learned counsel for the petitioner, prays that to obviate any error in future and also for future guidance of the officers, the issue be decided.

6. He further submits that it is the settled practice of the appellate authority not to hear the appeal unless and until the order passed under Rule 46 is complied with, notwithstanding the fact that the assessees are in compliance of the mandatory provisions of Sub-Section (2) of Section 72 of the Act.

7. It is apt to reproduce provisions of the Act and Rules having a bearing on the issue.

Provisions of the Act

“33. Assessment of tax based on audit objections.– Where an objection has been made by the Comptroller and Auditor-General of India in respect of an assessment or re-assessment made or scrutiny of any return filed under this Act, the prescribed authority shall proceed to re-assess the dealer with respect to whose assessment or re-assessment or scrutiny, as the case may be, the objection has been made in the manner prescribed:

Provided that no order under this section shall be passed without giving the dealer an opportunity of being heard.”

“72. Appeal to Deputy Commissioner and Joint Commissioner.–(1) Subject to such rules as may be made by the State Government under this Act, any dealer, objecting to an order of assessment or an order levying interest or penalty passed by the prescribed authority against him, or an order under section 25 or a person, objecting to an order of penalty passed against him or an order under section 47, may appeal to the Joint Commissioner, or, the Deputy Commissioner specially authorised in this behalf.

(2) No appeal under sub-section (1) shall be admitted unless the dealer objecting to an order of assessment has paid twenty-five per cent. of the tax assessed or full amount of admitted tax, whichever is higher.

(3) Every appeal under this section shall be filed, in such form and the manner, as may be prescribed, within forty-five days of the receipt of the notice of demand but where the appellate authority is satisfied that the appellant had sufficient reason for not preferring the appeal within time, it may condone the delay.

(4) The appellate authority while disposing of an appeal against an order, other than an order unde