M/S. S.E. GRAPHITES PRIVATE LIMITED versus STATE OF TELANGANA & ORS. on 10 July 2019

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SUPREME COURT REPORTS[2019] 9 S.C.R. 94

[2019] 9 S.C.R.

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M/S. S.E. GRAPHITES PRIVATE LIMITED

v.

STATE OF TELANGANA & ORS.

(Civil Appeal No.7574 of 2014)

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JULY 10, 2019

[A.M. KHANWILKAR AND AJAY RASTOGI, JJ.]

Andhra Pradesh General Sales Tax Act, 1957 – Proviso tos.19 and s.21(2) – Appellate Authority rejected the appealspreferred by the concerned appellants-assessees under theCprovisions of 1957 Act or 2005 VAT Act of AP or Telangana, as thecase may be – Appeals were dismissed inter alia on the ground thatthe appellants failed to comply with the pre-condition of producingproof of payment of tax admitted to be due for the relevantassessment year in respect of which the appeal was preferred byDthe concerned appellant – Writ petitions filed by the appellants –Dismissed by the High Court relying on the decision of theco-ordinate bench in Ankamma Trading case – On appeal, held:First proviso in s.19 of 1957 Act and s.31 of AP VAT Act, as thecase may be, pertains to limitation period “for filing” of an appealand discretion of the Appellate Authority to condone the delay inEfiling such appeal, up to a maximum period specified therein –Second proviso though part of the same section, is an independentcondition mandating the appellant to produce proof of payment oftax dues in respect of which the appeal is preferred – Even theHigh Court in Ankamma Trading Companyhad justly noted that theFsaid proviso does not provide for any specific period within whichthe tax dues should be paid – There is no express stipulation todeposit the tax dues in respect of which the appeal is preferred, atthe time of its filing, institution or presentation as such – In theabsence of such clear stipulation, it is open to the assessee to filethe appeal within the statutory period of limitation providedGtherefor and later on, deposit the specified tax dues but before theappeal is taken up for consideration by the Appellate Authority forthe first time, be it for condonation of delay in filing the appealand/or to admit it on merits or otherwise –Proof of such payment H

having been made could be produced thereat, failing which, theAppellate Authority will have to reject the appeal on that count –Filing, institution or presentation of appeal in the office of theAppellate Authority is an independent event than the appeal beingtaken up for consideration “for the first time”– It is possible thatsome unscrupulous litigant (assessee) may file appeal within thelimitation period but keep it under defect so that the same does notproceed for consideration before the Appellate Authority – Toobviate such mischief, the Appellate Authority shall take up everysingular appeal for consideration for admission on merits and/orfor condonation of delay in filing the appeal for the first time, nolater than 30 days from the date of its filing, institution orpresentation in its office – Direction be complied with by allconcerned meticulously, without any exception – Judgment of theHigh Court set aside – Writ petitions allowed – Concerned appealsstand restored to the file of the Appellate Authority and beconsidered in accordance with law – AP VAT Act, 2005 – SecondProviso to s.31 and Proviso to s.33(2) – Telangana State VAT Act,2005 – Constitution of India – Art.136 – Doctrine of Merger –Interpretation of Statutes.

Amdhra Pradesh General Sales Tax Act, 1957 – Power of theAppellate Authority under 1957 and 2005 Act – Discussed – APVAT Act, 2005 – Telangana State VAT Act, 2005.

Practice & Procedure – Filing, institution or presentation ofappeal vis-a-vis the appeal being taken up for consideration –Difference between – Explained.

Disposing of the appeals, the Court

Conclusion

HELD: 1.1 The first proviso in the concerned Section(Section 19 and Section 31, as the case may be) pertains tolimitation period “for filing” of an appeal; and discretion of theAppellate Authority to condone the delay in filing of such appeal,up to a maximum period specified therein. Indeed, the secondproviso is part of the same Section. However, it is anindependent condition and in one sense, mutually exclusivecondition mandating or enjoining the appellant to produce proofof payment of tax dues in respect of which the appeal is AB

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Apreferred. That obligation can be discharged until the appeal isconsidered for admission and/or condonation of delay in filing ofthe appeal, as the case may be, by the Appellate Authority for thefirst time. Even the High Court in Ankamma Trading Companyhad justly noted that the said proviso does not provide for anyspecific period within which the tax dues should be paid.BMoreover, there is no express stipulation to deposit the tax duesin respect of which the appeal is preferred, at the time of itsfiling, institution or presentation as such. In the absence of sucha clear stipulation, it must necessarily follow that it is open to theassessee to file the appeal within the statutory period ofClimitation provided therefor and later on, deposit the specifiedtax dues but before the appeal is taken up for consideration bythe Appellate Authority for the first time – be it for condonationof delay in filing the appeal and/or to admit it on merits orotherwise. The proof of such payment having been made could be produced thereat. Failing which, the Appellate Authority willDhave no other option but to reject the appeal on that count. TheAppellate Authority has no power to extend the time to depositthe specified tax dues. Suffice it to observe that, stricto sensu,thesaid proviso is not a provision of pre-deposit at the stage offiling, institution or presentation of the appeal as such; but is aEprovision stipulating payment of tax dues as a pre-requisite orsine qua non for consideration of appeal on merits or otherwiseand/or for condonation of delay in filing the same, as the casemay be, for the first time. It is also to impose fetter on theAppellate Authority from admitting the appeal for considerationon merits. It is well recognized that filing, institution orFpresentation of appeal in the office of the Appellate Authority isan independent event than the appeal being taken up forconsideration “for the first time” for being admitted on merits orotherwise and/or for condonation of delay in filing it, as the casemay be. There is no reason to interpret the stated proviso in anyGother manner lest, inevitably, it would result in re-writing thesame and entail in doing violence to the legislative intent.Presumably, Supreme Court in M/s. Innovatives Systems, and otherdecisions rendered following the same, therefore, was persuadedto allow the appeal preferred by the assessee and to relegate the H

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parties before the Appellate Authority for consideration of theappeal for admission on merits. Concededly, Supreme Court wasconscious of the decision in Ankamma Trading Company. In that,the judgment under challenge before it in the concerned appealwas founded on the view already taken by the coordinate benchof the same High Court [including in Ankamma TradingCompany]. It has been so recorded by Supreme Court. In thatsense, the legal position expounded in Ankamma TradingCompany, stood impliedly overruled, even though that decisionhas not been adverted to or expressly overruled by SupremeCourt. Indeed, the decision of Supreme Court in M/s. InnovativesSystems, is a brief judgment. That, however, would make nodifference. For, it is well established that once a special leavepetition has been granted, the doors for the exercise of appellatejurisdiction of this Court have been let open. Resultantly, theorder impugned before the Supreme Court became an orderappealed against and any order passed thereafter would be anappellate order and attract the doctrine of merger despite thefact that the order is of reversal or of modification or of affirmingthe order appealed against and including is a speaking ornon-speaking one. This legal position has been restated inKunhayammed. The argument of the respondent-State that thedecision of Supreme Court in M/s. Innovatives Systems, and otherdecisions following the same, cannot be considered as bindingprecedent is rejected. [Paras 8-11] [109-G-H; 110-A-H;111-A-G]

1.2 The first proviso pertaining to maximum period ofdelay to be condoned by the Appellate Authority, also uses theexpression “admit the appeal”. That expression “admit”,however, must be read to mean filing, institution or presentationof the appeal in the office of the Appellate Authority. Whereas,the expression “admitted” used in the second proviso will haveto be construed as analogous to expression “entertained”. Thesetting in which the provisions under consideration appear leavesno manner of doubt that it is ascribable to the event of taking upthe appeal for consideration, for the first time, to admit it on meritsor otherwise and/or for condonation of delay in filing the appeal,as the case may be. Before that event occurs, it is open to the ABCD

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Aappellant to deposit the tax dues in respect of which the appeal ispreferred and produce proof of such deposit before theAppellate Authority. This view is reinforced from the expositionof Supreme Court in Ranjit Impex, wherein the view taken by theDivision Bench of the High Court of Madras that the proof ofdeposit of tax has to be produced at the time when the appeal isBtaken up for consideration, but not at the time of filing orpresentation of the appeal, has been upheld. Even the decisionof this Court in M/s. Lakshmi Rattan Engineering Works Ltd.,heavily relied upon by the respondent-State, does not militateagainst the view taken by us - that the true purport of the saidCproviso is that the Appellate Authority shall proceed with theconsideration of appeal for admission for hearing on merits orotherwise and/or for condonation of delay in filing appeal, as thecase may be, if the proof of payment of the specified tax duesreferred to in the said proviso is produced by the appellant onthe first date of such consideration of the appeal. [Paras 12-14]D[112-A-F]

1.3 In the appeals under consideration, admittedly, theappellant-assessee had deposited the specified tax dues beforethe date on which appeal preferred by them was taken up forconsideration for the first time for admission on merits. In such aEsituation, the stated proviso becomes unavailable to reject theappeal on the ground of institutional defect. In this view of thematter, all these appeals must succeed. Taking advantage of theinterpretation given, it is possible that some unscrupulouslitigant (assessee) may file an appeal within the limitation periodFbut keep it under defect so that the same does not proceed forconsideration before the Appellate Authority. To obviate such amischief, it is directed that the Appellate Authority shall be obligedto take up every singular appeal for consideration for admissionon merits and/or for condonation of delay in filing the appeal forthe first time, no later than thirty days from the date of its filing,Ginstitution or presentation in the office of the AppellateAuthority. This direction shall be complied with by all concernedmeticulously, without any exception. That is the only way tosecure the interests of the Revenue and at the same time toeffectuate the purpose underlying the proviso regarding theH

deposit of specified amount of tax dues. Resultantly, the impugnedjudgment of the High Court is set aside and instead the writpetition(s) are allowed by setting aside the order passed by theAppellate Authority, rejecting the concerned appeals on theground of non-compliance of the stated proviso of the provisionsunder consideration. The concerned appeals shall stand restoredto the file of the Appellate Authority. The same shall proceed forconsideration in accordance with law. [Paras 16-18] [113-C-H;114-A]

Civil Appeal Nos.4098/2016 & 4099/2016

1.4 In this set of appeals, admittedly, the appellant-assesseedeposited the amount after the appeal filed by them came to berejected by the Appellate Authority. In that sense, the appellant-assessee failed to produce proof of payment of tax dues in respectof which the appeal was preferred before the Appellate Authoritywhen their appeal was taken up for consideration for admission.Resultantly, the deposit made after rejection of the appeal will beof no avail to the appellant-assessee, in light of the mandate ofthe stated proviso under consideration. In view of the above,these appeals are dismissed. [Paras 19, 20] [114-B-D]

1.5 If the appeal filed by the respondent is still pendingand has not been taken up for consideration so far by the AppellateAuthority, only then it would be open to the respondent to depositthe requisite amount and produce the proof of such deposit beforethe Appellate Authority. If, however, the appeal has already beentaken up for consideration for being admitted on merits orotherwise and by that date the respondent had not deposited therequisite amount as prescribed in terms of stated proviso, theAppellate Authority would be well within its jurisdiction and ratherduty bound to reject the appeal on the ground of an institutionaldefect. That is a matter to be considered by the AppellateAuthority. [Para 23] [115-C-E]

Civil Appeal No. 5343 of 2019

1.6 The impugned judgment is set aside and the partiesare relegated before the High Court for reconsideration of the A

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AWrit Petition No.837/2014 afresh on its own merits in accordancewith law and including in light of decision of this Court in CivilAppeal No.7574/2014 decided today. All contentions available toboth sides in the remanded writ petition are left open to beconsidered on its own merits and in accordance with law.[Para 33] [119-A-B]

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1.7 The parties are relegated before the High Court toconsider the same on its own merits, in accordance with law. Allquestions and contentions, available to both sides, are left openCto be decided by the High Court on its own merits. The impugnedjudgment of the High Court is set aside. [Paras 38, 39][121-D-E]

Civil Appeal No.3349/2018

1.8 In the present appeal, the appellant cannot be heard toDagitate the question already decided in Civil Appeal No.7574/2014 as nothing has been brought to notice to show that theappellant had deposited the specified tax dues, in respect of whichthe appeal was filed, before the first date of consideration of theappeal by the Appellate Authority. However, as the High CourtEhas dealt with merits of the challenge to the original order, inexercise of writ jurisdiction and as no argument was advanced byeither party in that regard, this appeal is delinked and directedthat it be heard separately on the challenge to the original orderpassed by the first Appellate Authority. Appeal to proceedaccordingly. [Paras 40, 41] [121-H; 122-A-B]F

Ankamma Trading Company v. Appellate Deputy Com-missioner (CT), Guntur & Anr.(2011) 44 VST 189 (AP);M/s. IOT Infrastructure & Energy Services Ltd., Rep.by its Deputy Manager (Accounts) v. State of AndhraPradesh Rep. by its Principal Secretary to GovernmentG(Judgment of Supreme Court dated 14.12.2016 inCivil Appeal No.12077/2016); M/s. Ranisati TradingCo. Rep. by its Managing Partner v. Commercial TaxOfficer, Gajuwaka Circle, Visakhapatnam and Ors.(Judgment of Supreme Court dated 17.04.2017 in Civil Appeal No.5339/2017);M/s. Lakshmi RattanEngineering Works Ltd. v. Asst. Commr. Sales Tax,Kanpur & Anr. [1968] 1 SCR 505 ; Narayan ChandraGhosh v. UCO Bank and Ors (2011) 4 SCC 548 :[2011] 3 SCR 1024 – referred to.

M/s. Innovatives Systems, Rep. by its ManagingPartner v. State of Andhra Pradesh, Rep. by PrincipalSecretary to Government (Judgment of Supreme Courtdated 23.02.2015 inCivil Appeal No.2230/2015) ;Kunhayammed and Ors. v. State of Kerala and Anr.(2000) 6 SCC 359 : [2000] 1 Suppl. SCR 538;Ranjit Impex v. Appellate Deputy Commissioner and Anr.(2013) 10 SCC 655 – relied on.

Case Law Reference

(2011) 44 VST 189 (AP) referred to[2000] 1 Suppl. SCR 538 relied on(2013) 10 SCC 655 relied on[1968] 1 SCR 505 referred to[2011] 3 SCR 1024 referred to Para 3Para 3 relied onPara 4 referred toPara 6 referred toPara 6

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7574of 2014

From the Judgment and Order dated 17.09.2013 of the High Courtof Judicature of Andhra Pradesh at Hyderabad in Writ PetitionNo. 15384 of 2013

With

Civil Appeal Nos.10433 of 2014, 2084 of 2015, 4098, 4099, 8452,10670 of 2016, 3349 of 2018, 5343 and 5345 of 2019.

B. Adinarayana Rao, Sr. Adv., Dr. M. V. K. Moorthy, R. AyyamPerumal, Hitendra Nath Rath, Yogesh Raavi, Vishnu Shankar Jain,Ms. Surekha Raman, Purushottam Kumar Jha, Akhil A. Roy, Sahil Singh,M/s. K J John And Co, Ms. Prerna Singh, Guntur Prabhakar, PrashantMathur, Ms. Shoba Ramamuoorthy, Sri Ram J. Thalapathy, Shilp Vinod, A

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APushkin Rajkumar, P. Venkat Reddy, Prashant Tyagi, M/s. Venkat PalwaiLaw Associates, S. Udaya Kumar Sagar, Naresh Kumar, D. MaheshBabu, Advs. for the parties.

The Judgment of the Court was delivered by A.M. KHANWILKAR, J.BCivil Appeal Nos.7574/2014, 10433/2014, 2084/2015 andCivil Appeal No.5345 of 2019

(Arising out of S.L.P. (C) No.6880 of 2019)

1. Leave granted in SLP (C) No.6880 of 2019.

C2.These Civil Appeals emanate from the orders passed by theAppellate Authority rejecting the appeal preferred by the concernedappellant(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 theground that the appellant-assessee had failed to comply with thepre-condition of producing proof of payment of tax admitted to be due orDof such installments as may have been granted and/or the proof ofpayment of twelve and a half percent (12.5%) of the difference of thetax assessed by the assessing authority and the tax admitted by theappellant for the relevant assessment year in respect of which theappeal has been preferred by the concerned appellant-assessee,Ewarranting rejection of the appeal in terms of the second proviso ofSection 19 and proviso of Section 21 (2) of the APGST Act, 1957 orsecond proviso of Section 31 and proviso of Section 33 (2) of the APVAT Act, 2005. Similar position obtains regarding the provisions ofTelangana State enactments.

F3.The High Court dismissed the writ petitions filed by theconcerned appellant following the decision of the coordinate bench ofthe High Court in Ankamma Trading Company Vs. Appellate DeputyCommissioner (CT), Guntur & Anr.[1] and other decisions taking thesame view, despite the appellant pointing out to the High Court that thedecision in Ankamma Trading Company (supra) has been impliedlyGoverruled by the Supreme Court in M/s. Innovatives Systems, Rep. byits Managing Partner Vs. State of Andhra Pradesh, Rep. byPrincipal Secretary to Government[2]. In that case, this Court after 1(2011) 44 VST 189 (AP)

2Civil Appeal No.2230/2015 (arising out of SLP (C) No.1832/2015 decided on FebruaryH23, 2015).

clearly noting that the High Court had relied upon the judgment andorder passed by the Division Bench of the same High Court [inAnkamma Trading Company (supra)] to dismiss the writ petition pre-ferred by the appellant, yet proceeded to allow the appeal filed by theappellant therein by setting aside the decision of the High Court. Theappellant in that case had filed appeal within limitation period butdeposited the twelve and a half percent (12.5%) of the difference of thetax assessed by the assessing authority in respect of which the appealwas preferred after the expiry of the limitation period specified in thefirst proviso of the concerned provision. This Court, nevertheless, heldthat the appellant having deposited the stipulated amount of twelve anda half percent (12.5%) as directed by the Appellate DeputyCommissioner (CT), the High Court ought to have condoned the delayin complying with the direction given by the Appellate Authority in thatregard and thus restored the appeal with a direction to the AppellateAuthority to decide the appeal on merits. Relying on the subsequentdecisions of this Court in M/s. IOT Infrastructure & Energy ServicesLtd., Rep. by its Deputy Manager (Accounts) Vs. State of AndhraPradesh Rep. by its Principal Secretary to Government[3] and M/s.Ranisati Trading Co. Rep. by its Managing Partner Vs.Commercial Tax Officer, Gajuwaka Circle, Visakhapatnam andOrs.[4], it is urged by the appellant-assessee that the High Court oughtnot to have disregarded those decisions on the specious ground that thesame cannot be treated as a binding precedent and purportedly havingbeen passed in exercise of plenary powers under Article 142 of theConstitution of India. Inasmuch as, looking at the decision in M/s.Innovatives Systems (supra) of this Court, there is hardly any doubtthat the effect of the said order is to impliedly overrule the principleenunciated by the Division Bench of the High Court in AnkammaTrading Company (supra) or other decisions following the same. For,this Court had unmistakably shown inclination to apply its mind to themerits of the said order before it having granted leave to appeal againstthe same albeit it had disposed of the matter by a brief judgment. Thus,additionally, the doctrine of merger would come into play as exposited inKunhayammed and Ors. Vs. State of Kerala and Anr.[5], wherein athree-Judge Bench of this Court opined that once a special leave 3 (Civil Appeal No.12077/2016 decided on 14.12.2016)

4 (Civil Appeal No.5339/2017 decided on 17.04.2017)

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Apetition has been granted, the doors of the appellate jurisdiction of thisCourt have been let open and any order passed thereafter would be anappellate order and would attract the applicability of doctrine of merger.Further, it would not make a difference whether the order is one ofreversal or of modification or of dismissal, or of affirming the orderappealed against. It would also not make any difference if the order is aBspeaking or a non-speaking one.

4. In addition, the appellant(s)-assessee(s) have relied on thedecisions of this Court in Ranjit Impex Vs. Appellate DeputyCommissioner and Anr.[6],which has had an occasion to deal with moreCor less similar provision, if not identically worded, being Section 51 of theTamil Nadu VAT Act, 2006. Even there the provision containedstipulation such as the proviso of the provisions under considerationpertaining to State of Andhra Pradesh and State of Telangana. It is thenurged that even the Division Bench of the High Court in the case ofAnkamma Trading Company (supra), in paragraph 25 has taken noteDof the fact that the proviso of the concerned section does notspecifically mention the time within which such proof of payment is tobe produced but then went on to rely on the first proviso dealing with theperiod of limitation within which the appeal is required to be filed and themaximum period of delay which could be condoned by the AppellateEAuthority, to hold that the deposit specified in the second proviso shouldalso be paid within such time only. Else, it went on to hold that theAppellate Authority is obliged to reject the appeal or in other words, notadmit the same.

5. The appellants would urge that there is well recognizedFdistinction between the factum of filing, institution and presentation ofthe appeal and the factum of “entertaining” the appeal or considerationthereof for admitting the same on merits. If the provision had expresslystated that the “appeal when filed” should be “accompanied with” thereceipt or proof of payment of amount referred to in the second proviso,the interpretation commended to the High Court could be sustained.GHowever, the High Court itself having recognized the fact that nospecific mention is made about the time within which such proof ofpayment is to be produced, the corollary thereof is that the proof of 6(2013) 10 SCC 655H

payment is required to be produced by the assessee on the “first date ofhearing” of the appeal for admission or consideration thereof on merits.The appellant has also relied on couple of reported decisions to contendthat the right of appeal, though, it does not inhere in the party, but oncesuch remedy is provided then it cannot be whittled down by giving strictinterpretation to the second proviso. However, the just approach wouldbe to read the expression “not to be admitted” as “not to be entertained”- if the dealer failed to produce proof of payment of tax dues as per thesecond proviso of the concerned provision. The thrust of the argumentis that in cases where the appellant-assessee has already paid therequisite amount referred to in the second proviso of the concernedprovision, before the appeal is taken by the Appellate Authority/Courtfor the “first time for consideration” after its filing in the office of theAppellate Authority, that will be substantial compliance of the secondproviso. In such a case, the Appellate Authority would be obliged toadmit the appeal if it deserves consideration on merits and the appellant-assessee cannot be non-suited on the ground that the amount so paid isafter the limitation period specified for filing of an appeal.

6. The respondent-State, on the other hand, has supported theexposition in the case of Ankamma Trading Company (supra), andwould urge that the view taken in the said decision is the only possibleinterpretation of the second proviso. In that, if the amount specified inthe second proviso is not deposited within the period provided for filingan appeal and including for condonation of delay, such appeal would beinflicted with institutional defect and will have to be rejected on thatcount in light of the mandate contained in the proviso of the concernedprovision. It is urged that the appellants have been ill- advised to invokedoctrine of merger. According to the respondent-State, on a bareperusal of the decision of this Court in M/s. Innovatives Systems(supra), and the other decisions passed following the same would clearlyindicate that it has been passed in the fact situation of the concernedcase. Notably, this Court has not interpreted the provisions underconsideration or for that matter explicitly overturned the principleexpounded by the Division Bench in Ankamma Trading Company(supra). Whereas, a bare reading of the provision makes it amply clear ABCD

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Athat it is a mandatory provision. Failure to comply with the stipulation inthe second proviso would inevitably denude the Appellate Authority fromentertaining the same or so to speak, admitting the same on merits. Heavyreliance has been placed on the decision in the case of M/s. LakshmiRattan Engineering Works Ltd. Vs. Asst. Commr. Sales Tax, Kanpur& Anr.[7],wherein this Court was called upon to interpret Section 9 of theBrelevant enactment. As per that provision, no appeal against anassessment shall be entertained unless it is accompanied by satisfactoryproof of the payment of the tax amount admitted by the appellant to bedue. The exposition in this decision, according to the respondent-State,would admit of no other interpretation of the second proviso as is held byCthe Division Bench of the High Court in Ankamma Trading Company(supra). In that, the Appellate Authority cannot exercise power to admitthe appeal beyond the statutory period and since the pre-deposit isquintessence, the requirement of pre-deposit within the maximumperiod of limitation for filing the appeal including, for condoning thedelay in filing the same, would have bearing on the second proviso of theDconcerned provision. Reliance is also placed on the decision in NarayanChandra Ghosh Vs. UCO Bank and Ors.[8], which has had anoccasion to interpret the purport of Section 18 of the Securitisation andReconstruction of Financial Assets and Enforcement of SecuritiesInterest Act, 2002 wherein the Court noted that there is an absoluteEpower to entertain an appeal under Section 18 of the Act unless thecondition precedent, as stipulated, is fulfilled. The respondent-State would,thus, contend that the deposit even if made by the assessee before therejection of the appeal (for non-compliance of the pre-condition in termsof the proviso of the concerned provision), will be of no avail to theassessee.F

7. We have heard the learned counsel for the parties. At theoutset, we deem it apposite to reproduce the relevantprovisions of the APGST Act, 1957 and AP VAT Act, 2005.Almost identical provisions obtain in the Telangana State Acts. SectionG19 and 21 of the APGST Act, 1957 and Section 31 and 33 of the APVAT Act, 2005, read thus:

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“APGST Act, 1957A.P. VAT Act, 2005Section 19. Appeals.-(1) Any 31. Appeal to Appellate authority.-(1) dealer objecting to any order Any VAT dealer or TOT dealer or any passed or proceeding recorded by other dealer objecting to any order any authority under the provisions passed or proceeding recorded by any of the Act other than an order authority under the provisions of the passed or proceeding recorded by Act other than an order passed or an Additional Commissioner or proceeding recorded by an Additional Joint Commissioner, or Deputy Commissioner or Joint Commissioner Commissioner under sub-section or Deputy Commissioner may, within (4C) of section 14 may within thirty days from the date of which the thirty days from the date on which order or proceeding was serve on him, the order or proceeding was appeal to such authority as may be served on him, appeal to such prescribed: authority as may be prescribed: Provided that the appellate Provided that the appellate authority authority may within a further may within a further period of thirty period of thirty days admit the days admit the appeal preferred after a appeal preferred after a period of period of thirty days if he is satisfied thirty days if he is satisfied that that the VAT dealer or TOT dealer or the dealer had sufficient cause for any other dealer had sufficient cause for not preferring the appeal within not preferring the appeal within that that period: period: Provided further that an appeal so Provided further that an appeal so preferred shall not be admittedpreferred shall not be admitted by the by the appellate authority appellate authority concerned unless the concerned unless the dealer dealer produces proof of payment of produces proof of payment of tax admitted to be due, or of such tax admitted to be due, or of such instalments as have been granted, and instalments as have been granted, the proof of payment of twelve and half and the proof of payment of per cent of the difference of the tax twelve and half per cent of the assessed by the authority prescribed and difference of the tax assessed by the tax admitted by the appellant, for the assessing authority and the tax the relevant tax period, in respect of admitted by the appellant, for the which the appeal is preferred. relevant assessment year, in respect of which the appeal is preferred.

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21. Appeal to the Appellate Tribunal.-(1) Any dealer objecting to an order passed or proceeding recorded-

33. Appeal to the Appellate Tribunal.-(1) Any dealer objecting to an order passed or proceeding recorded- B(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 (b) by the Additional Commissioner or Joint Commissioner, or Joint Commissioner or Deputy Commissioner or Deputy Commissioner suo motu under Commissioner under section Csub-section (4C) of section 14 21 or 32 or 38; or or under sub-section (2) of (c) by any authority following the section 20, may appeal to the ruling or order passed under Appellate Tribunal within section 67; sixty days from the date on May appeal to the Appellate which the order or proceeding Tribunal within sixty days from was served on him. the date on which the order or

(c) by any authority following the ruling or order passed under section 67; May appeal to the Appellate Tribunal within sixty days from the date on which the order or proceeding was served on him.

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(2) The Appellate Tribunal may within a further period of sixty days admit the appeal after the period of sixty days specified in Esub-section (1), if it is satisfied that the dealer had sufficient cause for not preferring the appeal with that period.

(2) The Appellate Tribunal may within a further period of sixty days admit the appeal preferred after the period of sixty days specified in sub-section (1), if it is satisfied that the dealer had sufficient cause for not preferring the appeal within that period:

Provided that no appeal against the order passed under section 31 shall be admitted under sub-section (1) or sub-section (2) of this section unless it is accompanied by satisfactory proof of the payment of fifty per cent of the tax, penalty, interest or any other amount as ordered by the appellate authority under section 31.”

Provided that no appeal against Fthe order passed under section 19 shall be admitted under sub-section (1) or sub-section (2), unless it is accompanied by satisfactory proof of the payment of fifty per cent of the tax as Gordered by the Appellate Deputy Commissioner under section19:

Provided further that no appeal against the order passed under sub-section (2) of section 20 shall be admitted under sub-section (1) or sub-section (2), unless it is accompanied by satisfactory proof of the payment of the tax admitted by the appellant to be due or in such instalments thereof as might have become payable as the case may be, and twenty five per cent of the difference of the tax ordered by the revisional authority under sub-section (2) of section 20 and the tax admitted by the appellant: Provided also that the assessing authority shall refund the said amount of twelve and half per cent or twenty five per cent or fifty per cent of the difference of tax assessed by the assessing authority or revisional authority as the case may be and the tax admitted and paid by the appellant, with simple interest calculated at the rate of 18 per cent per annum if the refund is not made within 60 days from the date of receipt of the order passed under section 19 or section 21.

(emphasis supplied)

8. These provisions have been interpreted by the Division Benchof the High Court in the case of Ankamma Trading Company (supra).We are essentially concerned with the second proviso of Section 19 andSection 31 of the respective enactment; and first proviso of Section21(2) and Section 33(2) of the respective enactment. Upon reading theSection under consideration as a whole, it is evident that the first provisoin the concerned Section (Section 19 and Section 31, as the case maybe) pertains to limitation period “for filing” of an appeal; and discretionof the Appellate Authority to condone the delay in filing of such appeal, A

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Aup to a maximum period specified therein. Indeed, the second proviso ispart of the same Section. However, it is an independent condition and inone sense, mutually exclusive condition mandating or enjoining theappellant to produce proof of payment of tax dues in respect of whichthe appeal is preferred. That obligation, in our opinion, can be dischargeduntil the appeal is considered for admission and/or condonation of delayBin filing of the appeal, as the case may be, by the Appellate Authority forthe first time. We are inclined to take this view as even the High Courtin Ankamma Trading Company (supra) had justly noted that the saidproviso does not provide for any specific period within which the taxdues should be paid. Moreover, there is no express stipulation to depositCthe tax dues in respect of which the appeal is preferred, at the time of itsfiling, institution or presentation as such. In the absence of such a clearstipulation, it must necessarily follow that it is open to the assessee tofile the appeal within the statutory period of limitation provided thereforand later on, deposit the specified tax dues but before the appeal is taken up for consideration by the Appellate Authority for the first time – be itDfor condonation of delay in filing the appeal and/or to admit it on meritsor otherwise. The proof of such payment having been made could beproduced thereat. Failing which, the Appellate Authority will have noother option but to reject the appeal on that count. The AppellateAuthority has no power to extend the time to deposit the specified taxEdues.

9. Suffice it to observe that, stricto sensu,the said proviso is not aprovision of pre-deposit at the stage of filing, institution or presentationof the appeal as such; but is a provision stipulating payment of tax duesas a pre-requisite or sine qua non for consideration of appeal on meritsFor otherwise and/or for condonation of delay in filing the same, as thecase may be, for the first time. If we may say so, it is also to imposefetter on the Appellate Authority from admitting the appeal forconsideration on merits. It is well recognized that filing, institution orpresentation of appeal in the office of the Appellate Authority is anindependent event than the appeal being taken up for consideration “forGthe first time” for being admitted on merits or otherwise and/or forcondonation of delay in filing it, as the case may be. There is no reasonto interpret the stated proviso in any other manner lest, inevitably, itwould result in re-writing the same and entail in doing violence to thelegislative intent. Presumably, this Court in M/s. Innovatives SystemsH

(supra), and other decisions rendered following the same, therefore, waspersuaded to allow the appeal preferred by the assessee and to relegatethe parties before the Appellate Authority for consideration of theappeal for admission on merits.

10. Concededly, this Court was conscious of the decision inAnkamma Trading Company (supra). In that, the judgment underchallenge before it in the concerned appeal was founded on the viewalready taken by the coordinate bench of the same High Court[including in Ankamma Trading Company (supra)]. It has been sorecorded by this Court. In that sense, the legal position expounded inAnkamma Trading Company (supra), stood impliedly overruled, eventhough that decision has not been adverted to or expressly overruled bythis Court.

11. The argument of the respondent proceeds that the decision inM/s. Innovatives Systems (supra), neither refers to any specificprovision nor has it expressly over turned the decision of the DivisionBench of the High Court in Ankamma Trading Company (supra).Thus, it cannot be considered as a binding precedent. We are notimpressed by this submission. Indeed, the decision of this Court in M/s.Innovatives Systems (supra), is a brief judgment. That, however, wouldmake no difference. For, it is well established that once a special leavepetition has been granted, the doors for the exercise of appellatejurisdiction of this Court have been let open. Resultantly, the orderimpugned before the Supreme Court became an order appealed againstand any order passed thereafter would be an appellate order and attractthe doctrine of merger despite the fact that the order is of reversal or ofmodification or of affirming the order appealed against and including is aspeaking or non-speaking one. This legal position has been restated inKunhayammed (supra). Having said this, we must reject the argumentof the respondent-State that the decision of this Court in M/s. InnovativesSystems (supra), and other decisions following the same, cannot beconsidered as binding precedent.

12. In addition, the appellant-assessee has rightly placed relianceon the decision of this Court in Ranjit Impex (supra). In that case, theCourt considered almost similar stipulation in Section 51 of the TamilNadu VAT Act, 2006. Indeed, the second proviso therein uses theexpression no appeal shall be “entertained”, unlike the expression used A

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Ain the provisions under consideration that the appeal so preferred “shallnot be admitted”. We are conscious of the fact that the first provisopertaining to maximum period of delay to be condoned by the AppellateAuthority, also uses the expression “admit the appeal”. That expression“admit”, however, must be read to mean filing, institution or presentationof the appeal in the office of the Appellate Authority. Whereas, theBexpression “admitted” used in the second proviso will have to beconstrued as analogous to expression “entertained”. We are inclined totake this view as the setting in which the provisions under considerationappear leaves no manner of doubt that it is ascribable to the event oftaking up the appeal for consideration, for the first time, to admit it onCmerits or otherwise and/or for condonation of delay in filing the appeal,as the case may be. Before that event occurs, it is open to the appellantto deposit the tax dues in respect of which the appeal is preferred andproduce proof of such deposit before the Appellate Authority.

13. This view is reinforced from the exposition of this Court inDRanjit Impex (supra), wherein the view taken by the Division Bench ofthe High Court of Madras that the proof of deposit of tax has to beproduced at the time when the appeal is taken up for consideration, butnot at the time of filing or presentation of the appeal, has been upheld.

14. Even the decision of this Court in M/s. Lakshmi RattanEEngineering Works Ltd. (supra), heavily relied upon by therespondent-State, does not militate against the view taken by us - thatthe true purport of the said proviso is that the Appellate Authority shallproceed with the consideration of appeal for admission for hearing onmerits or otherwise and/or for condonation of delay in filing appeal, asthe case may be, if the proof of payment of the specified tax duesFreferred to in the said proviso is produced by the appellant on the firstdate of such consideration of the appeal. Similarly, the case of NarayanChandra Ghosh (supra), will be of no avail to the respondent, whereinthe Court opined that there is an absolute bar to “entertain” an appealunder Section 18 of the Securitisation and Reconstruction of FinancialGAssets and Enforcement of Securities Interest Act, 2002, unless theconditions and stipulation are fulfilled. Inasmuch as, the second provisounder consideration does not require payment of tax dues referred totherein, at the time of filing, institution or presentation of the appeal but the proof of such payment has been made, is required to be producedbefore the Appellate Authority at the first hearing of the appeal; failingwhich the Appellate Authority would be well within its jurisdiction toreject it rather duty bound not to proceed with the appeal on merits andto reject the same at the threshold on the ground of an institutionaldefect.

15. For the view that we have taken, it is wholly unnecessary todeal with the other reported decisions relied upon by the parties or todeal with other arguments which have no bearing on the conclusionreached by us.

16. Reverting to the factual position in the appeals underconsideration, admittedly, the appellant-assessee had deposited thespecified tax dues before the date on which appeal preferred by themwas taken up for consideration for the first time for admission on merits.In such a situation, the stated proviso becomes unavailable to reject theappeal on the ground of institutional defect. In this view of the matter, allthese appeals must succeed.

17. While parting, we may observe that taking advantage of theinterpretation given by us, it is possible that some unscrupulous litigant(assessee) may file an appeal within the limitation period but keep itunder defect so that the same does not proceed for consideration beforethe Appellate Authority. To obviate such a mischief, we hold and directthat the Appellate Authority shall be obliged to take up every singularappeal for consideration for admission on merits and/or for condonationof delay in filing the appeal for the first time, no later than thirty daysfrom the date of its filing, institution or presentation in the office of theAppellate Authority. This direction shall be complied with by all con-cerned meticulously, without any exception. That is the only way to se-cure the interests of the Revenue and at the same time to effectuate thepurpose underlying the proviso regarding the deposit of specified amountof tax dues.

18. Resultantly, the impugned judgment of the High Court is setaside and instead the writ petition(s) are allowed by setting aside theorder passed by the Appellate Authority, rejecting the concernedappeals on the ground of non-compliance of the stated proviso of the A

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Civil Appeal Nos.4098/2016 & 4099/2016B

19. These appeals were heard analogously with Civil AppealNo.7574/2014. In this set of appeals, admittedly, the appellant-assesseedeposited the amount after the appeal filed by them came to be rejectedby the Appellate Authority. In that sense, the appellant-assessee failedto produce proof of payment of tax dues in respect of which the appealCwas preferred before the Appellate Authority when their appeal wastaken up for consideration for admission. In Civil Appeal No.7574/2014,we have held that it is open to the assessee to deposit the amount beforethe event of first date of hearing of the appeal for admission and/or forcondonation of delay in filing the appeal. Resultantly, the deposit madeafter rejection of the appeal will be of no avail to the appellant-assessee,Din light of the mandate of the stated proviso under consideration.

20. In view of the above, these appeals must fail and the sameare therefore, dismissed. All pending applications are also disposed of.No order as to costs.

ECivil Appeal No.8452/2016

21. This appeal was analogously heard along with Civil AppealNo.7574/2014. In the present appeal, the State has challenged thejudgment and order passed by the High Court in Writ Petition No.22337of 2015 and, in particular, the liberty granted to the respondent (writFpetitioner) to pay the requisite amount after expiry of the limitationperiod prescribed under Section 33 of AP VAT Act, 2005 and on suchdeposit being made, the Appellate Authority is directed to consider theappeal on merits.

22. The background in which such direction came to be issued,can be discerned from the appeal filed by the State. To wit, theGrespondent, who was dealing in works contracts and was registeredunder APGST Act, 1957, was assessed by the appropriate authority butthat assessment was revised by the Commercial Tax Officer by passinga revision order dated 25[th] March, 2013. Against that decision,respondent-assessee preferred appeal before the State Sales Tax H

Appellate Tribunal. During the pendency of the said appeal, respondentfiled a writ petition to challenge the orders passed by the CommercialTax Officer dated 27[th] February, 2013 and 25[th] March, 2013. That writpetition has been disposed of by the High Court vide impugnedjudgment, with liberty to comply with the condition of paying the taxdues in terms of the second proviso of the concerned provision within aperiod of six weeks from the date of receipt of the copy of order andupon such compliance, the Appellate Authority would decide thepending appeal on merits.

23. Having regard to the exposition in Civil Appeal No.7574 of2014, decided today, it must follow that if the appeal filed by therespondent is still pending and has not been taken up for considerationso far by the Appellate Authority, only then it would be open to therespondent to deposit the requisite amount and produce the proof ofsuch deposit before the Appellate Authority. If, however, the appeal hasalready been taken up for consideration for being admitted on merits orotherwise and by that date the respondent had not deposited therequisite amount as prescribed in terms of stated proviso, the AppellateAuthority would be well within its jurisdiction and rather duty bound toreject the appeal on the ground of an institutional defect. That is amatter to be considered by the Appellate Authority. Besides thisobservation, nothing more is required to be stated in this appeal filed bythe State.

24. We dispose of the appeal in the aforementioned terms with noorder as to costs. All pending applications are also disposed of.

Civil Appeal No.5343 of 2019

(Arising out of SLP (C) No.19961/2015)

25. Leave granted.

26. This appeal takes exception to the judgment and order dated31[st] October, 2014 passed by the High Court of Judicature at Hyderabadfor the State of Telangana and the State of Andhra Pradesh in WritPetition No.837 of 2014, whereby the writ petition filed by the assesseechallenging the order passed by the second respondent-AppellateAuthority dated 31[st] December, 2013 came to be rejected. The appealwas dismissed on the sole ground that the appellant had failed to pay the A

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Arequired twelve and a half percent (12.5%) disputed tax in terms ofSection 31 of AP VAT Act, 2005. Initially, the Commercial Tax Officerpassed an assessment order on 11[th] June, 2012. The appellant filedappeal against the said assessment order on 11[th] July, 2012. Theappellant was called upon by the Appellate Authority videcommunication dated 12[th] July, 2012 to make good the short payment ofBpre-deposit in the sum of Rs.1,35,00,512/- as also the institution fee. Theappellant filed response to the said communication contending that therewas nput tax credit to the account of the appellant in the sum ofRs.1080,01,63,420/- and that amount would arise only in respect of thetax paid on taxable purchases effected within the State. Despite thatCfactual aspect brought to the notice of the first Appellate Authority, itrejected the appeal for non-payment of pre-deposit amount vide orderdated 24[th] July, 2012. This was an ex-parte order.

27. The appellant then filed representation to the assessingauthority for issuing tax credit certificate for giving necessaryDadjustments against the taxes payable for 04/2010 to 06/2011 andpointing out the order of the Tribunal dated 18[th] October, 2011 whichwas communicated long back but not implemented thus far. Theappellant, therefore, submitted new representation to the assessingauthority on 15[th] September, 2012. The Commercial Tax Officereventually, issued a certificate on 12[th] October, 2012 certifying that theEappellant has input tax credit of Rs. 92,01,606/-, eligible to be refundedeither in cash or adjusted. On 13[th] October, 2012, the Commercial TaxOfficer issued proceedings holding that the appellant has an excess taxcredit of Rs.66,46,284/- for adjustment or refund.28.The appellant being aggrieved by the orders passed by theFAppellate Deputy Commissioner rejecting appeal on 24[th] July, 2012 onthe ground of non-payment of requisite disputed tax amount, filedsecond appeal before the Sales Tax Appellate Tribunal. That came to beallowed by setting aside the order rejecting the first appeal and insteaddirecting the first Appellate Authority to restore the appeal and hear theGappellant, as the order dated 24[th] July, 2012 was an ex parte order passedwithout hearing the appellant.

29. In remanded proceedings, appellant filed evidence before thefirst Appellate Authority on 21[st] July, 2013 and requested to consider the

evidence and give adjustment of the excess payment due to theappellant as certified by the assessing authority. Thus, the appellantrequested the Appellate Authority to accept the tax credit certificatesand take the appeal onfile for disposal on merits. Despite production ofthe said certificates, the Appellate Deputy Commissioner once againcalled upon the appellant to pay the balance amount towards pre-deposit, vide communication dated 15[th] May, 2013. In response thereto,the appellant filed representation reiterating its earlier stand.Nevertheless, the Appellate Deputy Commissioner once again rejectedthe appeal on 31[st] December, 2013, for non-payment of pre-depositamount primarily relying upon the judgment of Ankamma TradingCompany (supra). Eventually, the appellant challenged theaforementioned decision by filing writ petition No.847 of 2013. That writpetition has been dismissed by the High Court on the basis of theexposition in Ankamma Trading Company (supra).

30. The principal grievance of the appellant is that after remand,the first Appellate Authority failed to consider the specific stand takenby the appellant that it was entitled to adjustment of the amountmentioned in the tax credit certificate and if so done the appellant hadcomplied with the pre-condition of deposit of twelve and a half percent(12.5%) of the amount in respect of which the appeal was filed by theappellant before the first Appellate Authority. Although, this plea wasspecifically taken before the Appellate Authority, the judgment of theAppellate Authority has not analysed the same at all. Instead, itproceeded to dismiss the appeal merely by relying on the exposition inAnkamma Trading Company (supra). Similarly, even the High Courtafter recording this argument of the learned counsel for the appellant,has not analysed the same and mechanically rejected the writ petition onthe ground that appellant had failed to comply with the pre-condition ofdeposit. This approach of the High Court as well as of the first AppellateAuthority is the subject matter of assail in the present appeal.

31. We have heard the counsel for the parties. As regards thelegal position expounded in Ankamma Trading Company (supra), wehave already answered the same in Civil Appeal No.7574/2014 decidedtoday. That appeal was heard along with all connected matters. In thepresent case, however, the additional point which arises is whether theappellant was entitled for adjustment of the amount mentioned in the tax A

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Acredit certificate issued in favour of the appellant. Admittedly, theappellant had specifically taken that plea before the first AppellateAuthority. However, as already mentioned hitherto the first AppellateAuthority failed to analyse that aspect - which it was expected to do, interms of the earlier order passed by the second Appellate Authority andeven otherwise. Further, this grievance was specifically made beforeBthe High Court in the writ petition filed by the appellant as is noticedfrom the impugned judgment, the relevant portion of the judgmentrecording the argument of the appellant, reads thus:

“………

“………

CAggrieved thereby, the present Writ Petition is filed. Sri TejprakashToshniwal, Learned Counsel for the petitioner, would submit thatin M/s. Ideal Detonators Pvt. Ltd. v. Commercial Tax Officer,the Supreme Court had directed the Appellate DeputyCommissioner to revive the earlier order and dispose of the sameon merits, after due notice to the parties; in FytochemDFormulations Ltd. v. Commercial Tax Officer, a Division Benchof this Court had held that it is incumbent on the Commercial TaxOfficer to decide the representation submitted by the petitioner;and, in case the petitioner is entitled to the excess amount, then acertificate/endorsement should be issued to him, so that the amountEcan be adjusted towards pre-deposit of 12.5% at the time of ad-mission of the appeal; the Commercial Tax Officer was directedto decide the representation; and, in case the petitioner’srepresentation was accepted by the Commercial Tax Officer, the2[nd] respondent was directed to admit the appeal. LearnedCounsel would also rely on Chander Prakash Goyal v. State ofFHaryana, in this regard……………..”

32. However, even the High Court has not answered this specificplea urged by the appellant, in the impugned judgment. If the appellant isright in contending that the appellant is entitled for an adjustment ofamount and if so done, there would be no need for the appellant toGdeposit twelve and a half percent (12.5%) amount as required by thesecond proviso of Section 31 of the Act. The appellant had relied on thedecisions of this Court to buttress that argument. However, the samehas remained to be analysed and considered even by the High Court.

33. In that view of the matter, we deem it appropriate to set asidethe impugned judgment and relegate the parties before the High Courtfor reconsideration of the Writ Petition No.837/2014 afresh on its ownmerits in accordance with law and including in light of decision of thisCourt in Civil Appeal No.7574/2014 decided today. All contentionsavailable to both sides in the remanded writ petition are left open to beconsidered on its own merits and in accordance with law.

34. Accordingly, this appeal is allowed. The impugned judgmentand order passed by the High Court dated 31[st] October, 2014 in WritPetition No.837/2014 is set aside and instead the writ petition is restoredto the file of the High Court for fresh consideration in light of theobservations made hitherto. All contentions available to the parties areleft open. All pending applications are also disposed of. No order as tocosts.

35. This appeal was heard analogously with Civil Appeal No.7574/2014. It has been preferred by the assessee. The respondent No.2 passedan 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 equivalentto 100% of the tax due. The appellant relies on a certificate dated 4[th]April, 2015 issued by respondent No.1 and stated on oath that a taxcredit carry forward of Rs.10,63,683/- by end of May, 2014 is availableto the appellant. In the appeal preferred by the appellant against theorder imposing additional tax and penalty filed on 7[th] April, 2015, theappellant specifically took a plea that the input tax credit and allegedvariations between purchase and sales transactions recorded in the booksof account vis-à-vis the returns filed under the AP VAT have been wronglydisallowed. Notably, the appellant filed an affidavit stating that a taxcredit of Rs.10,63,683/- is available to the appellant after filing the monthlyreturn for May, 2014 and that such credit has not been adjusted to anyother tax liability and thus prayed that the said credit may be adjustedtowards the twelve and a half percent (12.5%) of Rs.67,57,696/-, whichcomes to Rs.8,44,712/-. Despite this specific stand taken by theappellant on affidavit, the respondent No.3 issued notice claiming thatthe appeals filed by the appellant were not compliant with Section 31 forwant of proof of payment of twelve and a half percent (12.5%) of the A

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Adisputed tax and penalty. Later on, respondent No.3 rejected the appealon 5[th] June, 2015 on the ground that the appellant had failed to producethe proof of payment of twelve and a half percent (12.5%) of thedisputed tax and penalty.

36. It is noticed from the narration of facts in the appeal that theBappellant was then advised to deposit the twelve and a half percent(12.5%) disputed tax which it did on 30[th] January, 2016 and 30[th] March,2016, in installments. The appellant had also filed writ petition underArticle 226 of the Constitution of India being Writ Petition No.393 of2015 and assailed the order passed by the Appellate Authority, rejectingits appeal on the ground of institutional defect due to non-production ofCproof of payment of disputed tax. The High Court relying on AnkammaTrading Company (supra), rejected the writ petition filed by theappellant.

37. Being aggrieved, the appellant has preferred this appeal. Uponperusal of order passed by the Appellate Authority, it is noticed that evenDthe Appellate Authority rejected the appeal without taking notice of theprayer 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 not been adjustedtowards any other tax liability and can be adjusted towards the twelveand a half percent (12.5%) of disputed tax amount of Rs.67,57,696/-,Ewhich comes to Rs.4,44,712/- only. The order of the AppellateAuthority, as communicated to the appellant, reads thus:

“The appeal petition along with stay petition (main appeal &penalty appeal) are returned as the same are not in accordance interms of second provision to sec.31(1) of read with Rule 38 of theFAP VAT, 2005 for the reason.

“Provided further that an appeal so preferred shall not beadmitted by the appellate authority concerned unless the dealerproduces proof of payment of tax admitted to be due or of suchinstalments as have been granted and the proof of payment of12.5% of the difference of the tax assessed and the tax admittedGby the appellant, for the relevant tax period, in respect of whichthe appeal is preferred.”

Further they have not filled the challan for appeal fee in originaland also medical certificate for delay in submission of the appeal.

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M/S. S.E. GRAPHITES PRIVATE LIMITED v. STATE OFTELANGANA & ORS. [A.M. KHANWILKAR, J.]

Hence, in view of the above, the admission of the two appealsstand rejected.”

38. Even the High Court has failed to consider this aspect of thematter. Whereas, if the representation/request made by the appellant isjust and deserved to be accepted, the appellant would be right incontending that no payment towards the amount specified in the statedproviso under consideration was required to be made by the appellantand for that reason, the appeal preferred by the appellant ought toproceed for consideration for admission on merits. In that, uponaccepting the representation to adjust the tax credit of Rs.10,63,683/-, acertificate/endorsement could be issued to the appellant by thedepartment so that the said amount is adjusted towards payment ofspecified amount of tax dues including twelve and a half percent (12.5%).There is force in this submission. However, instead of examining thisplea raised by the appellant in this appeal, we deem it proper to relegatethe parties before the High Court to consider the same on its ownmerits, in accordance with law. We do not wish to dilate on any othercontention in this judgment. We leave all questions and contentions,available to both sides, open to be decided by the High Court on its ownmerits.

39. In view of the above, we set aside the impugned judgment ofthe High Court and relegate the parties before the High Court byrestoring the Writ Petition No.31393 of 2015, for fresh considerationthereof by the High Court on its own merits in accordance with law. Allpending applications are also disposed of. No order as to costs.

40. This appeal was tagged along with the Civil Appeal No.7574/2014 and other connected matters. However, in those cases, the HighCourt had rejected the writ petition on the sole ground that theconcerned writ petitioner had failed to comply with the condition ofdeposit prescribed in terms of stated proviso of the provision(s) underconsideration. In none of these cases, the High Court considered thematter on merits regarding the challenge to the original assessmentorder. In the present appeal, the appellant cannot be heard to agitate thequestion already decided in Civil Appeal No.7574/2014 as nothing hasbeen brought to our notice to show that the appellant had deposited the AB

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41. However, as the High Court has dealt with merits of thechallenge to the original order, in exercise of writ jurisdiction and as noargument was advanced by either party in that regard, we deem itBappropriate to delink this appeal and direct that it be heard separately onthe challenge to the original order passed by the first AppellateAuthority. Appeal to proceed accordingly.

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Divya Pandey

Appeals disposed of.

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