46. Appeal

(1) Any dealer or person aggrieved by an order passed under this Act, by any officer specified in clause (c) to (f) of sub-section (1) of Section 3 may, in the prescribed manner, appeal against such order to the Appellate Authority.

Provided that no appeal shall lie against an order determining the date on which liability of a dealer to pay tax arises or against a notice issued under this Act for assessment or reassessment except after an assessment or reassessment order is passed.

(2) Any dealer or person aggrieved by an order passed in appeal under sub-section (1) may, in the prescribed manner, appeal against such order to the Appellate Board.

(3) Where the Commissioner considers any order passed under sub-section (1) by any Appellate Authority other than Deputy Commissioner erroneous he may file an appeal against such order before the Appellate Board within two calendar years from the date of such order.

(4) Notwithstanding anything contained in the rules or the regulations framed under any law for the time being in force or under the provisions of Section 4, any officer not below the rank of Deputy Commissioner duly authorised by the Commissioner in this behalf shall also have the right to be heard at the hearing of the appeal under sub-section (2) and (3).

(5) No first appeal against an order of assessment, with or without penalty or against an order imposing penalty shall be admitted by the Appellate Authority unless out of the total balance due from the dealer, payment of tax and other amounts admitted by the dealer to be due from him along with,

(i) in case of an appeal against an ex parte order, five percent, or

(ii) in other cases, ten percent,

of the remaining amount over and above the admitted amount is paid by the dealer and the memorandum of appeal is accompanied by a satisfactory proof of payment of such amount and thereupon the Appellate Authority shall stay the recovery of the balance of tax and / or penalty till the decision of appeal.

(6) No second appeal shall be admitted by the Appellate Board unless, out of the total balance due from the dealer after the order passed in first appeal, twenty percent of such balance is paid by the dealer and the memorandum of appeal is accompanied by a satisfactory proof of payment of such amount and thereupon the Appellate Board shall stay the recovery of the balance amount till the decision of the appeal.

(7) Every appeal shall be filed within sixty days from the date of communication of the order against which the appeal is to be filed.

(8) Subject to such procedure as may be prescribed and after such further enquiry as it may think fit,

(a) the Appellate Authority shall dispose of every appeal within one calendar year from the date of filing of such appeal and in disposing of such appeal, the Appellate Authority may,-

(i) confirm, reduce, enhance or annul the assessment or reassessment of tax or interest or imposition of penalty or both but shall not remand the case; or

(ii) pass such order as it may deem fit, in case of an appeal not covered by sub-clause (i).

(b) the Appellate Board shall make an endeavour to pronounce its order in writing within one calendar year from the date of filing of appeal and in disposing of such appeal, the Appellate Board may,-

(i) confirm, reduce, enhance or annul the assessment or reassessment of tax or interest or imposition of penalty or both; or

(ii) set aside the assessment or reassessment or the imposition of penalty or both and direct the officer whose order of assessment or imposition of penalty has been appealed against, to make a fresh assessment or re-impose penalty, after making such enquiry as it may direct; or

(iii) pass such order as it may deem fit.

(9) Notwithstanding anything contained in clause (a) of sub-section (8), where an appeal can not be disposed of within one calendar year by the appellate authority, the State Government may by notification for reasons to be recorded in writing extend the period for the disposal of such appeals by such further period as may be specified in such notification.

(10) In the case of an order passed by the Appellate Authority, such order subject to the provisions of sub-section (2) and (3) of this Section or sub-section (1) of Section 47, as the case may be, shall be final and in the case of an order passed by the Appellate Board such order, subject to the provisions of Section 53, shall be final.