WP(C) 2942/2011 BEFORE THE HON BLE MR. JUSTICE HRISHIKESH ROY Heard Dr. A Saraf, learned senior counsel appearing for the petitioner. Mr. KN C houdhury, learned Addl. Advocate General is appearing for the respondent Authori ties. 2. The petitioner is engaged in installation of lifts and elevators at the designated building sites in Assam. According to the petitioner, such installati on amounts to works contract under Section 2(57) of the Assam Value Added Tax Ac t, 2003 (hereinafter referred to as ’the VAT Act’) and since it is a case of \de emed sale\, the total turnover of the work is not assessable to tax as in case o f a normal sale. 3. The senior counsel refers to the order dated 27.12.2010 of the jurisdict ional Asstt. Commissioner of Taxes to show that the basis of the assessment orde r is the decision in State of Andhra Pradesh vs. M/s. Kone Elevator India Ltd. r eported in 2005 (3) SCC 389, where the Apex Court held that lifts and elevators assembled and installed at a prepared site is sale and exemption under the Centr al Sales Tax Act claimed on such works, will not be available. 4. On the issue of tax liability for the materials consumed during installa tion, a separate Writ Petition has been filed under Article 32 of the Constituti on and Dr. Saraf points out that on 28.3.2011 (Annexure-V), the Supreme Court ha d issued notice and restrained the Revenue, from taking any coercive steps for r ecovery of the additional demand, subject to the condition that the assessee has paid the undisputed tax. 5. The learned counsel has produced the earlier order of the Supreme Court on 13.2.2008 in WP(C) No.232/2005, to show that because of the conflict in the v iews expressed by different Benches, the issue decided in Kone Elevator India (S upra), has been referred for adjudication by a Constitution Bench. 6. What is under challenge in the present case is the direction of the Appe llate Authority i.e. the Deputy Commissioner of Taxes (Appeals), Guwahati, who h as directed the assessee to deposit 25% of the disputed tax, under Section 79(5) of the VAT Act, before the Appeal against the assessment order can be considere d. 7. Dr. Saraf submits that when the Supreme Court has referred the issue of taxability of the transaction to a larger Bench, the Appellate Authority will ha rdly be in a position to take a final decision on the Appeal and since the Appea l has been filed immediately only to cover the limitation period, they needn’t b e considered on merit at this stage, before the referred question is answered by the larger Bench. 8. The learned counsel further submits that since the Supreme Court on 28.3 .2011 (Annexure-V) has restrained the Revenue from taking coercive steps for rec overy of the additional demand, the Appellate Authority shouldn’t insist on depo sit of 25% of the disputed tax, for considering the Appeal. 9. Representing the Revenue, Mr. KN Choudhury submits that under the VAT Ac t, no Appeal can be entertained by the Appellate Authority without deposit of th e 25% of the disputed tax. Accordingly Mr. Choudhury contends that there can be no waiver of this legal requirement, if Appeals are to be considered by the Appe llate Authority. 10. The learned counsel also contends that merely because an issue has been referred to a larger Bench, the decision earlier rendered on 17.2.2005 by the Su preme Court in Kone Elevators India Ltd (Supra). will not cease to operate and s ince the impugned assessment is supported by the Supreme Court’s decision, the l egality of the assessment order as on date, cannot be questioned. 11. In so far as the taxability on the total turnover, according to the deci sion in Kone Elevator India (Supra), installation of lifts and elevators is a no rmal sale and until this decision is reversed by the larger Bench, the entire tu rnover is assessable to tax by considering it to be a normal sale. However it is also clear that a Constitution Bench is going to re-examine the issue. Therefor e, although Appeals have been filed by the assessee, there is little scope for t he Appellate Authority to consider these Appeals on merit. Accordingly, merely b ecause Appeals were filed (to cover limitation), there is no need to consider th em at this stage by the Appellate Authority, either for adjudication or even for admission. 12. In the context of the Appeal, since requirement of 25% pre-deposit of th e disputed tax is only for making the Appeal fit for consideration under Section 79 of the VAT Act and since the Appellate Authority, as earlier recorded, is ha rdly in a position to take a decision on the merit of the Appeal in view of the reference of the issue to the larger Bench of the Apex Court, I feel that, if Ap peals are kept pending at the stage of filing and not considered for adjudicatio n or for admission, insistence should not be made for pre-deposit of the 25% of the disputed tax, by application of Section 79(5) of the VAT Act. However, if th e assessee insists on pressing the Appeal, they must fulfill the statutory requi rement, prescribed under Section 79(5) of the VAT Act. 13. It must also be borne in mind that the core issue is being considered by the Supreme Court both in the Writ Petition filed by the assessee as well as in the reference to the larger Bench and if any prayer for staying the requirement of pre-deposit under the VAT Act has to be considered, the same in my view shou ld appropriately be considered, only by the Supreme Court and not by this Court or by the Appellate Authority. 14. In view of above, the Appellate Authority is ordered to keep the assesse e’s Appeal at its present stage of filing. But it shouldn’t be dismissed now bec ause of non-deposit of the 25% of the disputed tax as required under Section 79( 5) of the VAT Act, unless the assessee presses for consideration of the Appeal. It is ordered accordingly. However, this order should not be understood to mean that the assessee is not liable to pay its admitted tax liability. 15. The case is disposed of accordingly with the above observation and direc tion.