Bombay High Court
Capgemini Technology Services India ... vs The State Of Maharashtra on 19 October, 2023
Author: G.S. Patel
Bench: G.S. Patel
910-ASWP-9149-2023.DOCX
Ashwini
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9149 OF 2023
WITH
WRIT PETITION NO. 9151 OF 2023
Capgemini Technology Services India Ltd ...Petitioner
Versus
The State of Maharashtra & Ors ...Respondents
Mr Prakash Shah, with Mihir Deshmukh, Ranjan Mishra, Mihir
Mehta, Mohit Raval & Yash Prakash, i/b PDS Legal, for the
Petitioner.
Mr Tejesh Dande, for Respondents Nos. 2 & 3.
Mr AA Alaspurkar, AGP, for the Respondent-State.
CORAM G.S. Patel &
Kamal Khata, JJ.
DATED: 19th October 2023 Digitally signed PC:- by ASHWINI ASHWINI GAJAKOSH H Date: GAJAKOSH 2023.10.20 10:43:29 +0530 1. In both Petitions, Rule.
2. A common question arises that will require consideration. Mr Dande for Respondent No. 2 waives service. Learned AGP waives service for the State. Rule expedited. We will be fixing a peremptory date for hearing and final disposal at the earliest opportunity.
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3. A brief discussion is necessary to explain why we believe that these matters require consideration. The Petitioner in both cases is the same. It is a corporate enterprise with operations in Navi Mumbai. It has a Special Economic Zone or ("SEZ") unit. The Writ Petition No 9149 of 2023 relates to notices of assessment in Form 'H' under Rules 25(3), (10) and (11) of Maharashtra Municipal Corporation (Cess on Entry of Goods) Rules 1996 ("CEG Rules"). These relate inter alia to the financial years 2009- 2010, to 2012-2013.
4. In Writ Petition No 9151 of 2023, the challenge is to notices of assessment in Form 'H' of under Rules 25(3), (10) and (11) of Maharashtra Municipal Corporation (Local Body Tax) Rules 2010 ("LBT Rules"). The Petition points out that the notices of assessment in question are for the financial year 2013-2014 to 2015- 2016 and were issued on 25th July 2014 and 4th June 2015.
5. There are reminders in each case on 1st November 2022 and 6th June 2023.
6. The point canvassed by Mr Shah for the Petitioners is that these assessment proceedings have been kept without closure and final decision for what he describes as an unconscionable and inordinate time. It is his submission based inter alia on settled principles apart from a reading of the statute itself that assessments cannot be kept open for an indefinite period of time. One of the principle point of reference is the decision of this Court in Siemens Page 2 of 8 19th October 2023 ::: Uploaded on - 20/10/2023 ::: Downloaded on - 21/10/2023 02:20:59 ::: 910-ASWP-9149-2023.DOCX Ltd v State of Maharashtra & Anr1 and in particular paragraph 19 of that decision. Reliance is also placed on the decision of the Supreme Court in Ghanshyamdas v Regional Assistant Commissioner of Sales Tax,2 a judgment relied on by this Court in Siemens Ltd. The emergent principle according to Mr Shah is that a failure to complete an assessment period for more than ten years from the date of issuance of the original notice in Form 'H' renders the process of assessment liable to be quashed.
7. Mr Dande has filed Affidavits in Reply to both Petitions. His response is on several distinct grounds. First, he submits that as a matter of settled law, and from which no assessing officer has the authority to deviate, the assessee must be afforded a complete opportunity of hearing. If it is shown, therefore, that in response to a query an assessee sought time, then the assessment cannot be said to be stale because the assessing officer acceded to that request and granted additional time. Second, he submits that where there is no statutory prescription of a period within which the assessment must be completed, no Court can read into a taxing statute such words of limitation because it is equally well settled in taxation law, whether direct or indirect, that these statutes have to be construed strictly, without scope of liberal interpretation and there is no question of any play of equity in matters of taxation.
8. The answer from Mr Shah is simply to say that nobody had objected to the notices being issued. But in 2017 the Petitioners 1 Writ Petition No. 3124 of 2020, decided on 3rd May 2023.
21963 SCC OnLine SC 12 : AIR 1964 SC 766.
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9. Mr Dande asks us to look at page 194 in Writ Petition No 9149 of 2023. This is a letter from the Petitioners of 3rd August 2017 to the Cess Officer. It references a previous letter of 15th July 2017. It says that since the matter is old and the Petitioners staff is engaged in implementing GST, the Petitioners requested time until 18th August 2017. It is on this basis that at page 159 the averment in the Affidavit is the time was granted till 18th October 2017 and therefore Mr Dande's submission that no fault can be found with the officers for affording the Petitioners time that they themselves have sought.
10. But prima facie the arguments seem to us to overlook what happened immediately thereafter, leaving aside any date in October 2017 because on 21st September 2017, the Petitioners wrote to the LBT officer and asked him to complete the assessment. They assured him of cooperation and said that should he need any details these would be provided. The document at page 194 that Mr Dande relies on is one month prior to the Petitioner's letter requesting that the assessment be completed based on the documents that it had by then submitted. There is nothing shown to us to indicate what the Respondent did for five years after 21st September 2017 right up to the date of sending reminder notices dated 1st November 2022 and 6th June 2023 .
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11. Prima facie, we are therefore unable to appreciate the submission by Mr Dande that immediately after affording the Petitioner time, this Petition came to be filed. Time was afforded in 2017 and it is hardly possible, or at least not without doing very considerable violence to the language, to say that a filing of these Petitions in 2023 is 'immediately' after the extension of time.
12. Mr Dande now makes reference to a letter at page 145 from the Petitioner. This is a 9th November 2022 from the Petitioner and it refers to notices received from the Respondents on 1st November 2022. That is to say, it was only after a gap of five years that the Respondents reinitiated a query and asked for further details. The question is not what happened after November 2022. It is not as if this request for time of November 2022 is unreasonable. Obviously, information was sought in respect of transactions going back to 2008 and the notices of 2011. Nothing explains yet on Affidavit what the Respondents did between 2017 and 2022 when they once again sent a request.
13. Now we are told that the COVID period must be taken into account as if COVID was known or even anticipated in 2017 September, the whole of 2018, the whole of 2019 and even up to March/April 2020. It is also not as if during the whole of this period from March/April 2020 to November 2022, government and revenue offices were entirely paralyzed and could do no work. Everything we know is to the contrary.
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14. For these reasons, not only Rule but ad-interim relief in terms of prayer clause (c) in both Petitions:
15. In Writ Petition No. 9149 of 2023, the prayer clause (c) reads thus:
"(c) that pending the hearing and final disposal of this Petition, this Hon'ble Court by an interim order be pleased to restrain the Respondents by themselves, their officers, subordinates, servants and agents from taking any steps or proceedings pursuant to and in furtherance of the impugned:
(i) Notice in Form 'H' issued by Respondent No. 3 under Rule 25(3), (10) and (11) of the CEG Rules 1996 for the F.Y. 2008-09 and the subsequent reminder notice dated 15.07.2017, 01.11.2022 and 06.06.2023 issued by Respondent No. 3;
(ii) Notice in Form 'H' dated 28.03.2011 issued by Respondent No. 3 under Rule 25(3), (10) and (11) of the CEG Rules, 1996 for the F.Y. 2009-10 and the subsequent reminder notices dated 01.11.2022 and 06.06.2023 and the best judgement proposal dated 11.08.2014 issued by Respondent No. 3.
(iii) Notice in Form 'H' dated 20.07.2011 issued by Respondent No. 3 under Rule 25(3), (10) and (11) of the CEG Rules, 1996 for the F.Y. 2010-11 and the subsequent reminder notices dated 15.12.2011, 01.11.2022 and 06.06.2023 issued by Respondent No. 3.
(iv) Notice in Form 'H' dated 16.07.2012, 11.08.14 issued by Respondent No. 3 under Page 6 of 8 19th October 2023 ::: Uploaded on - 20/10/2023 ::: Downloaded on - 21/10/2023 02:20:59 ::: 910-ASWP-9149-2023.DOCX rule 25(3), (10) and (11) of the CEG Rules, 1996 for the period F.Y. 2011-12 and the subsequent reminder notices 01.11.2022 and 06.06.2023 issued by Respondent No. 3.
(v) Notice in Form 'H' dated 26.06.2013, 11.08.14 issued by Respondent No. 3 under rule 25(3), (10) and (11) of the CEG Rules, 1996 for the F.Y. 2012-13 and the subsequent reminder notices 01.11.2022 and 06.06.2023 issued by Respondent No. 3."
16. In Writ Petition No. 9151 of 2023, the prayer clause (c) reads thus:
"(c) that pending the hearing and final disposal of this Petition, this Hon'ble Court by an interim order be pleased to restrain the Respondents by themselves, their officers, subordinates, servants and agents from taking any steps or proceedings pursuant to and in furtherance of the impugned:
(i) Notice in Form 'H' dated 25.07.2014 and 04.06.2015 issued under Rule 33(7) of the LBT Rules for F.Y. 2013-14 and the reminder notices dated 01.11.2022 and 06.06.2023 issued by the Cess/LBT Officer (Respondent No. 3);
(ii) Notice in Form 'H' under rule 33(7) of the LBT Rule 2010 for FY 2014-15 and the reminder notices dated 01.11.2022 and 06.06.2023 issued by the Cess/LBT Officer (Respondent No. 3);
(iii) Notice in Form 'H' under rule 33(7) of the LBT Rule 2010 for FY 2015-16 and the reminder notices dated 01.11.2022 and Page 7 of 8 19th October 2023 ::: Uploaded on - 20/10/2023 ::: Downloaded on - 21/10/2023 02:20:59 ::: 910-ASWP-9149-2023.DOCX 06.06.2023 issued by the Cess/LBT Officer (Respondent No. 3)."
17. We now require an Affidavit from the Respondents to explain the delay after September 2017. This discussion is over and above the question of whether under a government policy in a Special Economic Zone there are exemptions available from either or both of these cesses or levies. Further Affidavit to be filed by 30th November 2023.
18. List both Petitions for hearing and final disposal at 2:30 pm on 12th December 2023.
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