CHAPTER VII

APPEAL, REVIEW AND REVISION

Section 51: First Appeal-

(1) Any dealer or other person aggrieved by an order made by the Assessing authority, other than an order mentioned in Section 56 or sub-section (7) and sub-section (8)of Section 43, may, within thirty days from the date of the service of the copy of the order, appeal to such authority as may be prescribed, and shall also serve a copy of the Memorandum of Appeal on the assessing authority.

(2) (i) Notwithstanding any thing contained in sub-section (1), where the disputed amount of tax, fee or penalty in an appeal does not exceed one thousand rupees, the appellant may, at his option, request the Appellate Authority in writing for summary disposal of his appeal, whereupon the Appellate Authority may decide the appeal accordingly

(ii) The manner and procedure of summary disposal of appeal shall be such as may be prescribed.

(iii) No appeal or revision shall lie against an order passed in appeal which has been disposed of summarily

(3) Where an appeal under this Section has been filed by any dealer or any person against an order referred to in sub-section (1) and where due to filing of such appeal the Commissioner can not revise such order passed by the assessing authority on the point of legality or propriety of such order under Section 52, the Commissioner may move an application to the appellate authority to examine the legality and propriety of such order on such point or points as may be mentioned in the application. A copy of such application shall be served on the dealer or such other person, as the case may be.

Provided that-

(i) No application under this sub-section shall be entertained after the expiration of four years from the date of the order in question,

(ii) No application for examination of legality and propriety under this sub-section shall be entertained after the disposal of appeal filed by the dealer or other person, as the case may be, and

(iii) Where the Commissioner has filed an application under this Section, the dealer or other person shall not be entitled to withdraw the appeal filed by him or any other application for disposal of appeal summarily under sub-section (2),

Explanation: For the purpose of this sub-section the Commissioner shall include an officer authorized to file an appeal on behalf of the Commissioner before the Tribunal under Section 53 of this Act.

(4) No appeal against an assessment order under this Act shall be entertained unless the appellant has furnished satisfactory proof of the payment of the amount of tax or fee due under this Act on the turnover of sales or purchases or both, as the case may be admitted by the appellant in the returns filed by him or at any stage in any proceeding under this Act, whichever is greater.

(5) The appeal shall be in the prescribed form and shall be verified in the prescribed manner.

(6) The appellate authority may, after calling for and examining the relevant records and after giving the appellant and the Commissioner a reasonable opportunity of being heard or, as the case may be, after following the procedure under sub-section (2), -

(i) confirm or annul such order; or

(ii) vary such order by reducing or enhancing the amount of assessment or penalty, as the case may be, whether such reduction or enhancement arises from a point raised in the grounds of appeal or otherwise; or

(iii) set aside the order and direct the assessing authority to pass a fresh order after such inquiry as may be specified; or

(iv) direct the assessing authority to make such inquiry and to submit its report within such time as may be specified in the direction or within such extended time as it may allow from time to time, and on the expiration of such time the Appellate Authority may, whether the report has been submitted or not, decide the appeal in accordance with the provisions of the preceding sub-clauses;

Provided that nothing in this sub-section shall preclude the Appellate Authority from dismissing the appeal at any stage with such observation as it deems fit where the appellant applies for withdrawal of the same and no request for enhancement of the assessment or penalty has been made by the Commissioner.

Provided further that before making an enhancement the appellant shall be given an opportunity of being heard on the proposal of enhancement.

(7) The appellate authority:

(a) shall in a case where the appellant makes a request under sub-section(2) and

(b) may, in any other case on the application of the appellant and after giving the Commissioner a reasonable opportunity of being heard,

stay the realization of the amount of the tax, fee or penalty payable by the appellant till the disposal of the appeal:

Provided that-

(i) no application under sub-clause (b) of this sub-section shall be entertained unless it is filed along with the memorandum of appeal under sub-section(1);

(ii) no stay order under this sub-section shall remain in force for more than thirty days unless the appellant has deposited the balance amount within seven days of receipt of stay order or the time allowed in the order of the assessing authority under appeal which ever later and before the expiry of the said period, furnished security to the satisfaction of the assessing authority for payment of the amount, the realization whereof has been stayed

Provided further that where an order under appeal does not involve any dispute about tax, fee or penalty, the appellate authority may stay the operation of such order till the disposal of appeal subject to such conditions including a condition of furnishing a security in cash or other wise as he may deem fit. Explanation: Rejection of similar application for stay by any authority for want of jurisdiction shall not by itself preclude the Appellate Authority from entertaining such application.

(8) An order passed under this Section shall, subject to the provisions of this Act, be final.

(9) If the amount of the tax assessed, fee levied or penalty imposed is reduced by the appellate authority under sub-section (5) he shall order the excess amount of tax, fee or penalty, if realized, to be refunded.

(10) Section 5 of the Limitation Act, 1963, shall apply to appeals or other applications under this Section.

(11) The appellate authority shall be under the superintendence and control of the Commissioner:

Provided that in the exercise of such superintendence and control of the Commissioner, no order, instructions and directions shall be given by the Commissioner so as to interfere with the discretion of the appellate authority in the exercise of its appellate functions.

(12) Appeal filed by the dealer and the application filed by the Commissioner arising out of the same cause of action in respect of an assessment year shall be heard and decided together.

Provided that where any one of such appeal or application has been heard and decided earlier, and if the Appellate Authority hearing the remaining appeal or application considers that such decision may be legal impediment in giving relief in such remaining appeal and application, he may recall such earlier decision and proceed to decide the appeal and the application together, after giving a fresh hearing.

Section 52: Revision by Commissioner

(1) The Commissioner or such other officer not below the rank of Deputy Commissioner as may be authorized in this behalf by the State Govt. by notification may call for and examine the record relating to any order, (other than an order mentioned in Section 56) passed by any officer subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such order and may pass such order with respect there to as he thinks fit.

(2) No order under sub-section (1) affecting the interest of a party adversely shall be passed unless he has been given a reasonable opportunity of being heard.

(3) No order under sub-section (1), shall be passed-

(i) to revise an order, which is or has been the subject matter of an appeal under Section 51, or an order passed by the Appellate Authority under that Section, subject to the provisions of sub-section (3) of Section 51.

Explanation: Where the appeal against any order is withdrawn or is dismissed for non payment of fee specified in Section77, or for non compliance of sub-section(1) of Section 51, the order shall not be deemed to have been a subject matter of an appeal under Section 51;

(ii) before the expiration of sixty days from the date of the order in question;

(iii) after the expiration of four years from the date of the order in question.

(4) No dealer or any other person shall be entitled to file an application under this Section.

Section: 53: Appeal to the Appellate Tribunal

(1) Any person aggrieved by an order passed under Section 51(other than an order referred to under sub-section (2) of that Section), under Section 52, a decision under Section 57, a direction under sub-section (8) of Section 43 may within ninety days from the date of service of the copy of such order, decision or direction on him, prefer an appeal to the Tribunal:

Explanation: For the purpose of this sub-section, the expression “any person” in relation to any order passed by an authority other than the Commissioner includes the Commissioner and, in relation to any order passed by the Commissioner includes the State Govt.

(2) (a) Notwithstanding any thing contained in sub-section(1), where the disputed amount of tax, fee or penalty does not exceed two thousand rupees and no question of law is involved, the appellant may, at his option, request to the Tribunal in writing for summary disposal of his appeal, whereupon the Tribunal may decide the appeal accordingly;

(b) The manner and procedure of summary disposal of appeal shall be such as may be prescribed;

© No revision shall lie against an order passed in appeal which has been disposed of summarily.

(3) Section 5 of the Limitation Act, 1963 shall apply to appeal or other applications under this Section.

(4) The Tribunal may at any stage, after the giving the appellant a reasonable opportunity of being heard, dismiss the appeal.

(5) The Tribunal may, if it has not already dismissed the appeal under sub-section (4), after calling for and examining the relevant records and after giving the party a reasonable opportunity of being heard or, as the case may be, after the following the procedure prescribed under sub-section (2):

(i) confirm, cancel or vary such order, or

(ii) set aside the order and direct the assessing or appellate or revising authority or the Commissioner as the case may be, to pass a fresh order after such further enquiry, if any, as may be specified,

(6) If any amount of tax, fee or penalty is reduced by the Tribunal under sub-section (5), he shall order that any money as may have been realized in excess of the due amount, be refunded according to the provisions of this Act:

Explanation: The power to vary an order referred to in clause (i) includes the power to vary the order by reducing or enhancing the amount of assessment or penalty. However before increasing the tax or other amount the dealer shall be given an opportunity of being heard on the proposal of increasing the liability.

(7) Where an appeal under this Section has been filed, the Tribunal may, on the application of the appellant moved along with the memorandum of such appeal after giving the parties a reasonable opportunity of being heard, stay the operation of the order appealed against or the recovery of disputed amount of any tax, fee or penalty payable, or refund of the amount due, or proceedings for reassessment under the order appealed against till the disposal of the appeal:

Provided that-

(i) no application for stay of recovery of any disputed amount of tax, fee or penalty shall be entertained unless the applicant has furnished satisfactory proof of the payment of not less than one third of such disputed amount in addition to the amount required to be deposited under sub-section (4) of Section 51,

(ii) the Tribunal may, for special and adequate reasons to be recorded in writing, waive or relax the requirements of sub-clause (i) regarding payment of the one third of such disputed amount .

(8) Where the Tribunal passes an order under this Section for the stay of recovery of any tax, fee or penalty or for the stay of the operation of any order appealed against and such order of the Tribunal results in the stay of recovery of any tax, fee or penalty, such stay order of the Tribunal shall not remain in force for more than thirty days unless the appellant has deposited the balance amount within seven days of the receipt of the stay order and has furnished security to the satisfaction of the assessing authority concerned for the payment of the amount, the realisation whereof has been stayed.

(9) (1) (a) An appeal against an order of the Appellate Authority under Section 51, or

(b) An appeal against an order passed under Section 52, or

© An appeal against a direction given under sub-section (8) of Section 43, or

(d) An application for stay under sub-section (7) of this Section,

shall be heard and disposed of by a single member.

(2) (a) An appeal against a decision given by the Commissioner under Section 57, or

(b) An appeal against an order passed by an Additional Commissioner (Appeal) shall be heard and disposed of by a bench of two members.

(3) In a case before a bench consisting of two or more members, any order other than an order finally disposing of the case may be passed by any one of the members constituting the bench,

(4) The President may, if he so thinks fit, transfer an appeal from one member to another member.

(10) Any member who has previously dealt with any case coming up before the Tribunal in any other capacity or is personally interested in any case coming up before the Tribunal shall be disqualified to hear that case.

(11) All appeals arising out of the same cause of action in respect of an assessment year shall be heard and decided together:

Provided that where any one or more of such appeals have been heard and decided earlier, and if the bench hearing the remaining appeals considers that such decision may be legal impediment in giving relief in such remaining appeals, it may, if the earlier decision was given-

(i) by a smaller bench or a bench of equal strength, recall such earlier decision and proceed to decide all the appeals together;

(ii) by a larger bench, refer such remaining appeals to such larger bench having jurisdiction and therafter such larger bench may recall such earlier decision and proceed to decide all the appeals together.

(12) The decision of case heard by a bench shall be in accordance with the opinion of the majority. Where the members are equally divided the President of the Tribunal may-

(i) if he was not a member of such bench, give his own opinion or refer the case for the opinion of another member, whereupon the case shall be decided in accordance with such opinion: or

(ii) form a larger bench.

(13) Where any case is heard by a Bench consisting of two members and the members are divided in their opinion on any point and the other member or the members of the Tribunal are disqualified under sub-section(10) to hear the case or there are for the time being only two members including the President, the Govt. may appoint a person qualified to be appointed as a member of Tribunal, as an additional member to the Tribunal and the point shall be decided in accordance with the opinion of majority of the members of the Tribunal who have heard the case, including those who first heard it.

(14) The additional member appointed under sub-section (13) shall cease to hold office on the disposal of the case for which he was appointed.

(15) The Tribunal shall serve the appellant with notice, in writing, of the appeal decision setting forth the reasons for the decision.

Section: 54: Constitution of Appellate Tribunal

(1) The Government shall appoint a Tribunal consisting of a President and such members as it think fit to perform the functions assigned to the Tribunal by or under this Act.

(2) The President and the members shall be appointed from amongst-

(i) the persons who are qualified to be judges of the High Court, and

(ii) the persons belonging to the Uttar Pradesh Trade Tax Service (as applicable in Uttaranchal), who hold or have held a post not below the rank of Additional Commissioner:

Provided that where the Tribunal consists of one or more persons who is or

are member or members of the Uttar Pradesh Higher Judicial Service (as applicable in Uttaranchal), then he or the senior most amongst them shall be appointed as the President.

(3) The State Government may prescribe such other qualifications or conditions for the appointment of the President and other members of the Tribunal as it may deem fit.

(4) The appointments to the Tribunal shall be made by the State Government-

(i) in case of persons who have been Judges of the High Court or are members of the Uttar Pradesh Higher Judicial Service (as applicable in Uttaranchal), in consultation with the High Court; and

(ii) in case of persons belonging to the Uttar Pradeesh Trade Tax Service (as applicable in Uttaranchal), by selection on the principle of merit from amongst persons who hold or have held the post not below the rank of Additional Commissioner of Trade Tax.

(5) The provisions of Rule 56 of the U.P. Fundamental Rules as applicable in Uttarnchal, shall apply to every member of the Tribunal including the President as they apply to any other Govt. servant.

(6) The head quarter of the President of the Tribunal shall be at Dehradun, and he shall exercise the concurrent jurisdiction over all the Benches in Uttaranchal.

(7) The head quarters and jurisdiction of other single member benches, referred to in clause (i) of sub-section (9) of Section 53. shall be such as the Govt. may, from time to time, in consultation with the President of the Tribunal notify.

(8) The President may, from time to time, constitute benches of two or more members, and specify the jurisdiction and place of sitting of such benches as he may consider necessary.

(9) The President may issue administrative instructions to the members for the smooth functioning of the Tribunal.

(10) The Tribunal shall, with the previous sanction of the Govt. make regulations consistent with the provisions of this Act and the rules made thereunder for regulating its procedure and the disposal of its business.

(11) The regulations made under sub-section (10) shall be published in the official Gazette.

Section 55: Revision by High Court

(1) Any person aggrieved by an order under sub-section (4) or sub-section(5) of Section 53, other than an order under sub-section (2) of that Section summarily disposing of the appeal or by an order passed under Section 30, by the Tribunal may, within ninety days from the date of service of such order, apply to the High Court for revision of such order.

(2) A revision to the High Court may be made on question of law or an erroneous decision or failure to decide a question of law that will be raised in revision.

(3) The application for revision under sub-section(1) shall precisely state the question of law involved in the case and it shall be competent for the High Court to formulate the question of law or to allow any other question of law to be raised.

(4) The Commissioner shall also be made a party to the proceedings before the High Court where appeal is filed by the dealer or other person.

(5) Where an application under this section is pending, the High Court may, on an application in this behalf stay recovery of any disputed amount of tax, fee or penalty payable, or refund of any amount due under the order sought to be revised:

Provided that no order for stay of recovery of such disputed amount shall remain in force for more than thirty days unless the applicant furnishes adequate security to the satisfaction of the assessing officer concerned.

(6) The High Court shall after hearing the parties to revision decide the question of law involved therein, and where as a result of such decision the amount of tax, fee or penalty is required to be determined afresh, the High Court may send a copy of the decision to the Tribunal for fresh determination of the amount, and the Tribunal shall thereupon pass such orders as are necessary to dispose of the case in conformity with the said decision.

(7) All applications for revision of orders passed under Section 53 in appeals arising out of the same cause of action in respect of an assessment year shall be heard and decided together:

Provided that where any one or more of such applications have been heard and decided earlier, if the High Court while hearing the remaining applications, considers that the earlier decision may be a legal impediment in giving relief in such remaining applications, it may recall such earlier decision and may thereafter proceed to hear and decide all the applications together.

(8) The provision of Section 5 of the Limitation Act,1963, shall mutatis mutandis apply to every application, for revision under this Section.

Explanation: For the purpose of this Section, the expression “any person” includes the Commissioner and the State Govt.

Section: 56: Orders against which No Appeal or Revision shall lie

No appeal and no application for revision shall lie against-

(i) an order or notice under Section 24, Section 25 and Section 29 initiating an enquiry for assessment or reassessment;

(ii) any order or action under Section 42 or sub-section (1), sub-section (2), sub-section(4), sub-section (7) and sub-section (8) of Section 43 or sub-section (6) of Section 48.

Section: 57: Determination of Disputed Questions

(1) If any question arises, otherwise than in a proceeding pending before a Court or before an assessing authority under Section 25 or Section 29, whether, for the purpose of this Act-

(i) any person or association of persons, society, club, firm, company, corporation, undertaking or Govt. Department is a dealer; or

(ii) any particular thing done to any goods amounts to or results in the manufacture of goods within the meaning of that term; or

(iii) any transaction is a sale or purchase and, if so, the sale or, as the case may be, the purchase price thereof ; or

(iv) any particular dealer is required to obtain registration; or

(v) any tax is payable in respect of any particular sale or purchase and, if so, the rate thereof,

the person or the dealer concerned may, after depositing the fee specified in Section 77 submit an application to the Commissioner along with such documents as may be prescribed.

(2) The Commissioner shall, after giving the applicant an opportunity of being heard, decide as he deems fit the question so arising:

Provided that before giving such decision, the Commissioner may, in his discretion, ask an officer subordinate to him to make such enquiries as he considers necessary for the decision of the question.

(3) No decision of the Commissioner under this Section shall affect the validity or operation of any order passed earlier by any assessing officer, appellate authority, revising authority or the Tribunal.

(4) No question which arises from an order already passed, in the case of applicant, by any authority under this Act or the Tribunal, shall be entertained to be determined under this Section.

(5) Except as provided in sub-section (3), a decision given by the Commissioner under this Section shall, subject to the provisions of Section 53 and Section 55 be final and binding on the applicant, the assessing authority and the Appellate authority.

(6) A copy of the decision given under this Section shall be sent to the applicant and the assessing authority concerned.