Appeal

(6) 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. (7) No application under clause (b) of sub-section (6) shall be entertained unless it is filed along with the memorandum of appeal under sub-section (1) and no stay order shall remain in force for more than forty five; days unless the appellant deposited the balance amount within thirty days of receipt of stay order or the time allowed in the order of the assessing authority under appeal which ever is 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 that where the amount stayed is less than rupees twenty five thousand, the dealer shall not be required to furnish the security in respect of such amount : 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 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) 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), :-- (a) confirm or annual such order; or (b) 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 (c) set a side the order and direct the assessing authority to pass a fresh order after such inquiry as may be specified; or (d) 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: Provided also that the appeal shall be disposed off within such time as may be prescribed; Provided further that on an appeal, against an order passed after the direction under Clause (c), no further direction to pass a fresh order be made under Clause (c). (9) An order passed under this Section shall, subject to the provisions of this Act, be final. (10) If the amount of the tax assessed, fee levied or penalty imposed is reduced by the appellate authority under sub-section (6) he shall order the excess amount of tax, fee or penalty, if realized, to be refunded. (11) Section 5 of the Limitation Act, 1963, shall apply to appeals or other applications under this Section. (12) 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. (13) 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 anyone 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.