2013 INSC 0813
Ranjit Impex
v.
Appellate Deputy Commissioner & Another
(Supreme Court Of India)
HON'BLE MR. JUSTICE ANIL R. DAVE HON'BLE MR. JUSTICE DIPAK MISRA
Civil Appeal No. 7809 Of 2013 (Special Leave Petition (Civil) No. 27073 Of 2011) | 03-09-
2013

Leave granted.

2. The present appeal by special leave is directed against the judgment and order dated
24.06.2011 passed by the High Court of Judicature at Madras in W.A. No. 730 of 2011
wherein the Division Bench declined to interfere with the judgment and order dated
17.02.2011 passed by the learned Single Judge in W.P. No. 2974 of 2011.

3. The factual narration would exposit that the appellant herein preferred an appeal before the
Deputy Commissioner-I, Commercial Taxes and at the time of presentation, a sum of
Rs.8,52,472/- was required to be deposited as per the calculation made under Section 51 of
the Tamil Nadu Value Added Tax Act, 2006 (for brevity 'the Act') but as it was not done, the
Memorandum of Appeal was returned to him. The learned Single Judge disposed of the writ
petition directing the assessee to comply with all the requirements as intimated by the
appellate authority in the Return Memo dated 3.1.2011 and on such compliance, the appellate
authority was directed to register the appeal and dispose of the same in accordance with the
law.

4. In the Writ Appeal, it was contended that the appellate authority could not have returned
the Memorandum of Appeal on the ground that Section 51 uses the term "entertain" and
second, the amount that was due to the appellant from the department was to be adjusted for
the purpose of deposit as envisaged under Section 51 of the Act. The Division Bench came to
hold that the proof of deposit of tax has to be produced at the time when the appeal is taken
for consideration but not at the time of presentation of appeal. As far as issue of adjustment is
concerned, it is objected that the amount had properly been adjusted.

5. As far as the first issue is concerned, it is needless to say that the conclusion arrived at by
the Division Bench is absolutely justified, for a condition to entertain an appeal does not
mean that the Memorandum of Appeal shall be returned because of such non- compliance
pertaining to pre-deposit. The only consequences that the appeal shall not be entertained

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which means the appeal shall not be considered on merits and eventually has to be dismissed
on that ground.

6. As far as the adjustment is concerned, learned counsel for the appellant submitted that the
adjustment has not been appositely done. In course of hearing, a suggestion was given that
the assessee should deposit the amount demanded by the first appellate authority under
Section 51 of the Act and the cavil over proper adjustment should be agitated in a proper
proceeding before the authorities.

7. Learned counsel for the assessee accepting the said decision submitted that in that event
the finding recorded by the Division Bench to the effect that there had been proper
adjustment should be set aside. Having heard the learned counsel for the assessee and learned
counsel for the revenue, we are inclined to direct that the appellant shall deposit the amount
as required by the Deputy Commissioner-I, Commercial Taxes vide order dated 6.1.2011 by
30th September, 2013 whereafter the appeal shall be heard and disposed of on merits. As far
as the adjustment/refund is concerned, it is open to the appellant to initiate any independent
proceeding. The conclusion of the Division Bench with regard to the factum that there has
been proper adjustment by the Department in respect of the claim made by the assessee is set
aside. However, we may proceed to clarify that we have not expressed any opinion with
regard to the claim of the assessee.

8. In the result, the appeal is allowed in part and the order passed by the Division Bench is
modified accordingly. There shall be no order as to costs.

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