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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
VIJAY BISHNOI, SUMAN SHYAM, JJ.
Putul Gogoi S/o Late Debendra Nath Gogoi – Petitioner
Versus
The State of Assam – Respondent
Revision Petition No. 3 of 2016
Decided On : 30-05-2024
AGST Act 1993 - Appeal - Section 33(6)
Fact of the Case:
The petitioner, a hardware goods trader, filed appeals against assessment orders for the years 2002-2003 and 2003-2004. The appeals were dismissed for not depositing 25% of the disputed tax as required under Section 79(5) of the VAT Act, 2003. The petitioner argued that the appeals should be considered under Section 33 of the AGST Act, 1993.
Finding of the Court:
The court held that the appeals should be considered under Section 33 of the AGST Act, 1993, as the dispute arose prior to the introduction of the VAT Act, 2003. It also found that the Appellate Authority had not considered the petitioner's request for waiver of the pre-deposit condition.
Issues: 1. Whether the appeals should be considered under the AGST Act, 1993 or the VAT Act, 2003. 2. Whether the Appellate Authority considered the petitioner's request for waiver of the pre-deposit condition.
Ratio Decidendi: The right of appeal is a substantive right and should be governed by the law prevailing at the date of the institution of the suit or proceeding. The Appellate Authority has the discretion to waive the pre-deposit condition under Section 33(6) of the AGST Act, 1993.
Final Decision: The court allowed the revision petition, set aside the previous orders, and remanded the matter back to the Appellate Authority to consider the appeals under Section 33 of the AGST Act, 1993. It directed the Appellate Authority to consider the petitioner's request for waiver and to decide the appeals expeditiously.
JUDGMENT :
VIJAY BISHNOI, J.
1. This Revision Petition is filed by the petitioner being aggrieved with the order dated 16.07.2015 passed by the Assam Board of Revenue, Guwahati in Case No. 66STA/13 to 67STA/13, whereby the appeals filed by the petitioner against the order dated 29.07.2013 passed by the Deputy Commissioner of Taxes (Appeals), Jorhat/respondent No. 3, has been dismissed.
2. The brief facts of the case are that the petitioner was in business of trading of hardware goods, L.D. Oil, J.D. Oil, Thinner, Furnane Oil etc. under the name and style of M/s. P.G. Oil Traders which was a proprietorship concern. M/s. P.G. Oil Traders was registered under the provisions of the Assam General Sales Tax Act, 1993 (hereinafter referred to be “AGST Act 1993”).
3. As per the petitioner, the operation of the aforesaid M/s. P.G. Oil Traders was stopped sometime in the month of April, 2003 and the registration certificate issued to it under the AGST Act, 1993 had also been surrendered which was duly acknowledged by the office of the Assistant Commissioner of Taxes, Sivasagar, Assam/respondent No. 4.
4. It is the case of the petitioner that M/s. P.G. Oil Traders has submitted its returns for the assessment years 2002-2003 and 2003-2004 before the Assessing Authority as per the provisions of Assam General Sales Tax Rules, 1993. The assessments for the aforesaid years were finalised and the assessment orders were passed by the Assessing Officer for the assessment years 2002-2003 on 31.03.2008 and for the year 2003-2004 on 27.07.2008.
5. It is contended that the proprietor of the M/s. P.G. Oil Traders was not aware about the said assessment orders. However, he came to know about the same when certain proceedings were initiated against him for recovery of the alleged dues. On enquiry, the petitioner came to know that the assessments have been concluded for the aforesaid assessment years and proceedings were initiated for recovery of the due tax amount.
6. The petitioner had, therefore, obtained certified copies of the assessment orders of the aforesaid years in the year December, 2012 and had preferred an appeal before the Deputy Commissioner of Taxes (Appeals), Jorhat/respondent No. 3. Along with the said appeal, the petitioner has also preferred stay application as well as condonation of delay application.
7. In those appeals, the date of hearing was fixed as 19.02.2013. However, the petitioner was asked to deposit 25% of the disputed tax. The petitioner had opposed the same and also prayed for waiver of requirement of deposit of 25% of the disputed tax.
However, the Deputy Commissioner of Taxes (Appeals), Jorhat/respondent No. 3, dismissed the appeals filed on behalf of the petitioner vide impugned order dated 29.07.2013 while holding that the Appellate Authority is conferred with the power under Section 79(5) of the Assam Value Added Tax Act, 2003 (hereinafter to be referred as “VAT Act, 2003”) which requires proof of payment of at least 25% of the total disputed amount. It is also observed that as the petitioner is unable to produce proof of payment of 25% of the disputed amount in the form of Treasury Challan, the appeal filed by the petitioner cannot be admitted.
The order dated 29.07.2013 reads as under:
Dated Jorhat the 29th July, 2013
Sri Sidhartha Baruah, FCA, authorized representative of the appellant appeared and submitted a prayer petition for waiving of the 25% payment of the disputed tax to entertain the appeal memorandum. The authorized representative has cited that the appellant is facing acute shortage of fund as he has liquidated all profit earning business because of financial crisis.
The learned representative of the appellant has also prayed that the appellant be allowed to deposit 25% of the disputed amount in the form of Bank Guarantee. Carefully heard the contention of the learned authorized representative. The power of this appellate authorities is confined to the power conferred under section 79(5) which requires proof
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