Madhya Pradesh High Court
M/S Hotline Teletube And Component Ltd. ... vs The State Of Madhya Pradesh on 13 November, 2017
W.P.No.1880/2017 (M/s Hotline Teletube & Component Ltd. Vs. State
of Madhya Pradesh and another )
1
13.11.2017
Shri Prashant Sharma, learned counsel for the
petitioner.
Shri Praveen Newaskar, learned Govt. Advocate for
the respondent/State.
With consent of learned counsel for the parties the matter is finally heard.
2. Petitioner takes exception to order dated 4.11.2016 passed by the State Government as well as order dated 31.3.2009 passed by the Assistant Commissioner, Commercial Tax, Circle III, Gwalior.
3. For the assessment year 1.4.2005 to 31.3.2006 despite repeated opportunities given to the petitioner, the petitioner did not participate in the assessment proceedings and produce the relevant documents resulting in an ex parte assessment order wherein the petitioner was found for the tax liability and penalty thereon to the tune of Rs.1,68,52,708/- by order dated 31.3.2009. Where-against the petitioner filed a revision under sub section (7) of section 62 of Madhya W.P.No.1880/2017 (M/s Hotline Teletube & Component Ltd. Vs. State of Madhya Pradesh and another ) 2 Pradesh Vanijyik Kar Adhiniyam, 1994 read with Rule 82 of Madhya Pradesh Vanijyik Kar Niyam, 1995.
4. As sub clause (c) of sub-rule (1) of Rule 82 of Rules 1995 contemplates that at least fifty percent of the amount of tax and/or penalty outstanding at the time of making the application is paid and the proof of payment is furnished along with the application where the relief sought is in respect of the tax assessed or penalty imposed, an application under sub-section (7) of section 62 of Adhiniyam, 1994 cannot be entertained. The petitioner despite repeated opportunities granted to him since did not abide by said condition, as a result whereof the revision filed by the petitioner came to be dismissed by impugned order dated 4.11.2016 by the Revisional Authority.
5. It is this order with the petitioner calls in question.
6. Sub-section (7) of Section 62 of Madhya Pradesh Vanijyik Kar Adhiniyam, 1994 stipulates:
W.P.No.1880/2017 (M/s Hotline Teletube & Component Ltd. Vs. State of Madhya Pradesh and another ) 3 "(7) Notwithstanding anything contained in sub-section (1), but subject to such restrictions and conditions as may be prescribed, where on an application made by a dealer the State Government is of the opinion that hardship is being caused to such dealer due to any order passed under any of the provisions of this Act other than an order under Section 32 or an order passed in pursuance or in consequence of an order by the Tribunal or the Civil Court, High Court or Supreme Court, the State Government may direct the Commissioner to initiate proceedings under sub-section (1) in respect of such order and on such direction the Commissioner shall dispose of such proceeding according to law as if the proceedings had been initiated by him under clause (b) of sub-section (1) :
Provided that no such direction shall be given unless -
(a) the dealer has exhausted the remedies available to him under Section 61, subsection (1) of this Section, Section 71 or Section 72, as the case may be, or the period within which any remedy under the aforesaid provisions can be sought has expired, and/ or
(b) his application for revision under sub-section (1) has been rejected on merits :
Provided further that such an application shall be entertained by the State Government only once."
(Emphasis supplied)
7. That the State Government in exercise of its W.P.No.1880/2017 (M/s Hotline Teletube & Component Ltd. Vs. State of Madhya Pradesh and another ) 4 powers conferred by section 80 of Madhya Pradesh Vanijyik Kar Adhiniyam, 1994 has framed the Madhya Pradesh Vanijyik Kar Niyam, 1995. Rule 82 whereof provides that:
"82. Application for relief under sub-section (7) of Section 62. - (1) Any dealer seeking relief under sub-section (7) of Section 62 shall make an application in Form 65 to the State Government. No such application shall be entertained by the State Government, unless -
(a) it is accompanied by authenticated copies of the original order and of subsequent appellate and/or revisional order;
(b) a period of three years has not elapsed -
(i) since the date of expiry of one year from the date of order, where no first appeal or revision had been filed against such order within the time provided therefor; or
(ii) since the date of expiry of one year from the date of the order in first appeal, where no second appeal or revision had been filed against such order within the time provided therefor; or
(iii) since the date of order in revision:
Provided that where any application is made by a dealer after the expiry of such period, the State Government may, if it is satisfied that the dealer was prevented by sufficient cause in making the application in time, condone the delay and entertain such application;
(c) at least fifty percent of the amount of W.P.No.1880/2017 (M/s Hotline Teletube & Component Ltd. Vs. State of Madhya Pradesh and another ) 5 tax and/or penalty outstanding at the time of making the application is paid and the proof of payment is furnished along with the application where the relief sought is in respect of the tax assessed or penalty imposed:
Provided that where the State Government is of the opinion that the requirement to pay fifty per cent of the tax and/or penalty would cause hardship to the dealer, it may entertain the application on payment of such smaller amount that it may direct having regard to the circumstances of the case; and
(d) it is accompanied by a duplicate copy of the application along with duplicate copies of all its enclosures.
(2) On entertaining the application, the State Government may call for the report of the Commissioner on the facts and the grounds stated in the application. If on consideration of the facts of the case and the report of the Commissioner, the State Government is satisfied that there are sufficient grounds for re-opening the case, it may direct the Commissioner to initiate fresh proceedings under sub-section (1) of Section 62 and to pass appropriate order after hearing the applicant. If the State Government is not so satisfied, it shall reject the application and shall send an intimation thereof to the applicant."
(Emphasis supplied)
8. The combined reading of the aforesaid provisions makes it clear that if an application is preferred under W.P.No.1880/2017 (M/s Hotline Teletube & Component Ltd. Vs. State of Madhya Pradesh and another ) 6 sub-section (7) of section 62, the application is entertainable only on fulfillment of the condition stipulated in sub clause (a), (b), (c) and (d).
9. Sub clause (c) of sub-Rule 1 of Rules, 1982 clearly mandates that application under sub-section (7) of section 62 of the Adhiniyam, 1994 cannot be entertained unless at least 50% of the amount of tax and/or penalty outstanding at the time making the application is paid and the proof of payment is furnished along with the application where the relief sought is in respect of the tax assessed or penalty imposed.
10. Though it is contended by learned counsel for the petitioner that aforesaid clause is not attracted in the case at hand; however, the fact remains and as not disputed by the petitioner that the application preferred by him against the order dated 31.3.2009 was under
sub-section (7) of section 62 of Adhiniyam, 1994. Thus, the provisions contained under Rule 82 of Rules, 1995 W.P.No.1880/2017 (M/s Hotline Teletube & Component Ltd. Vs. State of Madhya Pradesh and another ) 7 gets attracted.
11. The impugned order when tested on the anvil of the aforesaid analysis cannot be faulted with as would warrant any interference.
Consequently, the petition fails and is dismissed.
(Sanjay Yadav) (S.K. Awasthi)
Judge Judge
pawar/-
Digitally signed by ASHISH PAWAR
ASHISH
DN: c=IN, o=HIGH COURT OF M.P.
BENCH GWALIOR, ou=P. S.,
postalCode=474011, st=Madhya
Pradesh,
2.5.4.20=022bf22fa73f89c6f6d933de11 PAWAR 46a290a49b3c94df18221974589b5a02 e0fc6b, serialNumber=45b88e29cf4fecaaa753c 8ca8740ad0da9c3e498ade24a066f820 e24846008ae, cn=ASHISH PAWAR Date: 2017.11.17 12:41:53 +05'30'