Madhya Pradesh High Court
M/S Texmo Pipes And Products Limited vs Assistant Commissioner Of Commercial ... on 17 August, 2012
W.P.No.11250/2012
M/s Texmo Pipes And Products Ltd Asst. Commissioner of Commercial
Tax, Khandwa & others
17.8.2012
Shri Mukesh Agarwal, counsel for petitioner.
Shri P.K.Kaurav, Dy.A.G., for respondents.
The petitioner has sought following reliefs :-
"1. To quash the notice dated 11.07.2012 (P/6) issued by the respondent no.1 u/s 52(2) initiating penalty proceeding for the year 2008-09.
2. To direct the respondent no.1, the assessing officer to hear & decide stay application of the petitioner at an earlier date.
3. To direct the respondent no.4, the Appellate Board to hear & decide stay application of the petitioner at an earlier date.
4. To direct the respondent no.4, the Appellate Board to hear & decide appeal of the petitioner at an earlier date.
5. To grant any other relief or any other writ or order or direction which the Hon'ble Court deems fit and proper in the facts and circumstances of the case."
The petitioner has challenged show cause notice Annexure P-6 dated 11.7.2012 issued for imposition of penalty because of some observations made in the assessment order.
It is submitted by the learned counsel for petitioner that against the assessment order an appeal preferred by the petitioner is pending before the respondent no.4 and till the appeal is decided, further proceedings in continuation to show cause notice Annexure P-6 may be stayed. Reliance is placed by the petitioner to Division Bench judgments of this Court in W.P.No.8252/2012 M/s Vijay Tank & Vessels Private Limited Vs. The Divisional Deputy Commissioner of Commercial Tax, Sagar & others dated 28.5.2012, S.R.Kalani & Co. Vs. C.L.Sharma & another [(2004) 3 STJ 282 (MP)] and a Single Bench judgment of this Court in Haji Abdul Hussain T.Malu Bhai Vs. Assistant Commercial Tax Officer & W.P.No.11250/2012 M/s Texmo Pipes And Products Ltd Asst. Commissioner of Commercial Tax, Khandwa & others others [(2008) 13 STJ 516 (MP)] and submitted that on the aforesaid directions, this petition may be disposed of.
Shri P.K.Kaurav, learned Dy.A.G., submitted that in the light of the judgment passed by this Court the matter may be disposed of finally.
Considering the fact that the assessment order imposing entry tax is under challenge before the respondent no.4 and till the decision by the respondent no.4 penalty proceedings deserves to be kept in abeyance.
In M/s Vijay Tank & Vessels Private Ltd. (supra) the Division Bench of this Court held thus :-
"Though the present writ petition has been filed for questioning the constitutional validity of Section 53 of VAT Act, 2002, Shri Agrawal, learned counsel for the petitioner submitted that this Court need not advert to the issue of constitutional validity but may direct the appeal pending before the respondent no.2 challenging the original order of assessment to be disposed of and till then not to take any proceeding as regards the penalty, inasmuch as, in case of ultimate success in the original appeal, there would be no proceeding for imposition of penalty.
Regard being had to the aforesaid aspect and having heard learned counsel for the parties, it is directed that the appeal preferred by the appellant challenging the original order of assessment before the respondent no.2 shall be heard and finally decided within three months and till the said appeal is disposed of, the assessing officer shall not proceed for imposition of penalty against the appellant.
We may hasten to add, we have not expressed any opinion on the merits of the case.
The writ petition is accordingly disposed of. There shall be no order as to costs."
Considering the fact that the identical controversy has been decided in M/s Vijay Tank & Vessels Private Ltd. (supra) and at present we are having no reason to differ with the aforesaid order, we dispose of this petition in terms of the directions issued by the Division Bench in M/s Vijay Tank & Vessels Private Ltd. (supra). The W.P.No.11250/2012 M/s Texmo Pipes And Products Ltd Asst. Commissioner of Commercial Tax, Khandwa & others aforesaid directions shall be applicable in the present case mutatis mutandis. No order as to costs.
C.C., as per rules.
(Krishn Kumar Lahoti) (Smt.Vimla Jain)
Judge Judge
M.