Section 98 ·

Substituted by Act No.4 of 2009. Appeal to the Appellate Tribunal. admitted under sub-section (1) or sub-section (2) unless it is accompanied by satisfactory proof of the payment of the tax, penalty, interest or any other amount admitted by the appellant to be due or of such instalments as might have become payable as the case may be, and twenty five percent of the difference of the tax, penalty, interest or any other amount ordered by the revisional authority under sub-section (2) of section 32 and the tax, penalty, interest or any other amount admitted to be due and paid by the appellant: Provided also that no appeal against the order passed by any authority by following the ruling or order, issued under section 67, shall be admitted under sub-section (1) or sub-section (2), unless it is accompanied by satisfactory proof of the payment of the tax, penalty, interest or any other amount admitted by the appellant to be due or payable or of such instalments thereof, as might have become payable, as the case may be and the proof of payment of fifty percent of difference of the tax, penalty, interest or any other amount levied by the authority by following the ruling, issued under section 67, and the tax, penalty, interest or any other amount admitted to be due and paid by the appellant: Provided also that the authority prescribed shall refund the said amount of twelve and half percent or twenty five percent or fifty percent of the difference of tax, penalty, interest or any other amount assessed by the authority prescribed or revisional authority as the case may be and the tax, penalty, interest or any other amount admitted and paid by the appellant, with interest calculated at the rate of 12% per annum, if the refund is not made within 90 days from the date of receipt of the order passed under section 31 or 33.] (3) The appeal shall be in the prescribed form, shall be verified in the prescribed manner, and shall be accompanied by such fee which shall not be less than one hundred rupees but shall not exceed two thousand rupees as may be prescribed. (4) The Appellate Tribunal may, after giving both parties to the appeal a reasonable opportunity of being heard,- (a) confirm, reduce, enhance or annul the assessment or the penalty or both; or (b) set aside the assessment or the penalty or both, and direct the authority prescribed to pass a fresh order after such further inquiry as may be directed; or (c) pass such other order as it may think fit: Provided that if the appeal involves a question of law, a decision on which is pending in any proceeding before the High Court or the Supreme Court, the Appellate Tribunal may defer the hearing of the appeal before it, till such proceeding is disposed of. (5) (a) Before passing any order under sub-section (4), the Appellate Tribunal may make such inquiry as it deems fit or remand the case to the appellate authority against whose order the appeal was preferred or to the authority prescribed concerned, for an inquiry and report on any specified point or points; (b) Notwithstanding anything contained in sub-section (4), where the VAT dealer or TOT dealer or any other dealer who has filed an appeal to the Appellate Tribunal fails to appear before the Appellate Tribunal either in person or by counsel when the appeal is called on for hearing, it shall be open to the Tribunal to make an order dismissing the appeal: Provided that the Appellate Tribunal may, on an application made by the dealer within thirty days from the date of communication of the order of dismissal and on sufficient cause being shown by him for his non-appearance when the appeal was called on for hearing, re-admit the appeal on such terms as it thinks fit, after giving notice thereof to the authority against whose order or proceeding the appeal was preferred. (6) (a) Where a VAT dealer or TOT dealer or any other dealer, objecting to an order passed or proceeding recorded by a Deputy Commissioner under section 21 or 32 has preferred an appeal to the Appellate Tribunal, the Additional Commissioner, or the Joint Commissioner may, on an application filed by the dealer, subject to such terms and conditions, as he may think fit, order stay of collection of the tax under dispute pending disposal of the appeal by the Appellate Tribunal; (b) the payment of tax and penalty, if any, due in accordance with the order of the first appellate authority or of the Deputy Commissioner under section 21 or in revision under section 32, in respect of which an appeal has been preferred under sub-section (1), shall not be stayed pending disposal of the appeal. (7) Except as provided in the rules Appellate Tribunal shall not have the power to award costs to either of the parties to the appeal. (8) Every order passed by the Appellate Tribunal under sub-section (4) shall be communicated by it to the dealer, the authority against whose order the appeal was preferred, the Commissioner and such other authorities as may be prescribed. (9) Every order passed by the Appellate Tribunal under sub-section (4) shall, subject to the provisions of section 34 be final. Revision by High Court. 34. (1) Within ninety days from the date on which an order under sub-section (4) of section 33 was communicated to him the VAT dealer or TOT dealer or any other dealer or the authority prescribed in this behalf may prefer a petition to the High Court against the order on the ground that the Appellate Tribunal has either decided erroneously or failed to decide, any question of law: Provided that the High Court may admit a petition preferred after the period of ninety days aforesaid, if it is satisfied that the petitioner had sufficient cause for not preferring the petition within that p d'period. (2) The petition shall be in the prescribed form, shall be verified in the prescribed manner, and shall, where it is preferred by the dealer, be accompanied by a fee of rupees five hundred. (3) If the High Court perusing the petition, considers that there is no sufficient ground for interfering, it may dismiss the petition summarily: Provided that no petition shall be dismissed unless the petitioner has had a reasonable opportunity of being heard in support thereof. (4) (a) If the High Court does not dismiss the petition summarily, it shall, after giving both parties to the petition, a reasonable opportunity of being heard, determine the question or questions of law raised and either reverse, affirm, or amend the order against which the petition was preferred or remit the matter to the Appellate Tribunal with the opinion of the High Court on the question, or questions of law raised, or pass such other order in relation to the matter as the High Court thinks fit; (b) Where the High Court remits the matter to the Appellate Tribunal under clause (a) with its opinion on the question or questions of law raised, the Appellate Tribunal shall amend the order passed by it in conformity with such opinion. (5) Before passing an order under sub-section (4), the High Court may if it considers it necessary so to do, remit the petition to the Appellate Tribunal and direct it to return the petition with its finding on any specific question or issue. (6) (a) Notwithstanding that a petition has been preferred under sub-section (1) tax shall be paid in accordance with the assessment made in the case: Provided that the High Court may, in its discretion permit the petitioner to pay the tax in such number of instalments, or give such other direction in regard to the payment of tax as it thinks fit: Provided further that if, as result of the petition, any change becomes necessary in such assessment, the High Court may authorize the authority prescribed to amend the assessment, and on such amendment being made the excess amount paid by the dealer shall be refunded to him without interest, or the further amount of tax due from him shall be collected in accordance with the provisions of the Act, as the case may be; (b) The payment of tax and penalty, if any due in accordance with the order of the Appellate Tribunal in respect of which a petition has been preferred under sub-section (1) shall not be stayed pending the disposal of the petition, but if such amount is reduced as a result of such petition, the excess tax paid shall be refunded in accordance with the provisions of the Act. (7) (a) The High Court may, on the application of the dealer or the authority prescribed review any order passed by it under sub-section (4) on the basis of facts which were not before it when it passed the order; (b) the application for review shall be preferred within such time and in such manner as may be prescribed and shall, where it is preferred by the dealer, be accompanied by a fee of rupees one hundred. de (8) In respect of every petition or application preferred under sub-section (1) or sub-section (7) the costs shall be in the discretion of the High Court. Appeal to High Court. 35. (1) Any VAT dealer or TOT dealer or any other dealer objecting to an order relating to assessment passed by the Commissioner suo-motu under section 32 or 38 may appeal to the High Court within sixty days from the date on which the order was communicated to him: Provided that the High Court may admit an appeal preferred after the period of sixty days aforesaid, if it satisfied that the dealer had sufficient cause for not preferring the appeal within that period. (2) The appeal shall be in the prescribed form, shall be verified in the prescribed manner and shall be accompanied by such fee which shall not be less than five hundred rupees but shall not exceed two thousand rupees as may be prescribed. (3) The High Court shall, after giving both parties to the appeal, a reasonable opportunity of being heard, pass such order thereon as it thinks fit. (4) The provisions of sub-sections (4), (7) and (8) of section 34 shall mutatis-mutandis apply in relation to appeal preferred under sub-section (1) as they apply in relation to petition preferred under sub-section (1) of section 34. 36. Every petition, application or appeal preferred to the Petitions, High Court under sections 34 or 35 shall be heard by a Bench of not less than two Judges, and in respect of such petition, application or appeal the provisions of section 98 of the Code of Civil Procedure, 1908 shall, so far as may be, apply. applications to be heard by a Bench. Central Act V of 1908. 37. Notwithstanding anything contained in sections 21 and 32 where an assessment, re-assessment, rectification in or revision of an assessment is made in respect of a dealer or any person in pursuance or in consequence of or to give effect to any finding or direction contained in an order under sections 31, 32, 33, 34 and 35 or in an order of any court in a proceeding otherwise than by way of appeal or revision, such assessment, re-assessment, rectification in or revision of an assessment shall be made within three years from the date of receipt of such order by the prescribed or revising authority as the case may be: Provided that if such appeal, order or order of any court has been subjected to further appeal, either partially or entirely, and if there are orders of stay prohibiting the authority concerned to pass consequential orders, the period of three years shall get extended by the period during which such stay orders were in force: Provided further that if the subsequent appeal results in modification of such appeal, order or order of any court which is subjected to further appeal, either partially or wholly, the period of three years shall be computed from the date of receipt of subsequent order of appeal but not from Limitation in respect of certain assessments or re-assessments ordered. the date of receipt of the original appeal, order or order of any court which was subjected to further appeal. Refund of Tax Refund of Tax. 38. (1) (a) A VAT dealer effecting sales falling under sub-section (1) or (3) of section 5 99[XXX] of Central Sales Tax Act, 1956 in any tax period shall be eligible for refund of tax, if the input tax credit exceeds the amount of tax payable, subject to the condition that the exports have been made outside the territory of India. The excess of tax shall be refunded within a period of ninety days on a claim made on a VAT return prescribed to the authority prescribed subject to the provisions of the Act and the rules made thereunder; tules (b) in all other cases, the VAT dealer may make a claim for refund of any excess credit available at the end of second year after the commencement of the Act and thereafter in the return to be filed for the month of March every year if registered as a VAT dealer for a minimum period of twelve months or in the event of cancellation of registration. The excess of input tax credit claimed as refund shall be refunded within ninety days of the date of receipt of the claim; (c) the claim for refund under this section shall be made on the VAT return in the form prescribed; (d) a VAT dealer, who has paid tax in excess of the amount due for a tax period, may claim a credit in the next tax return. (2) Where a VAT dealer claiming a refund is required by authority prescribed to provide accounts or records to substantiate the claim but fails to do so in a manner