Calcutta High Court (Appellete Side)
M/S. Vatech Wabag Limited vs Deputy Commissioner Of Sales Tax on 30 March, 2017
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
W.P. No. 1211 (W) of 2016
M/s. Vatech Wabag Limited
Vs.
Deputy Commissioner of Sales Tax,
Midnapur Charge & Ors.
With
W.P. No. 1212 (W) of 2016
M/s. Vatech Wabag Limited
Vs.
Deputy Commissioner of Sales Tax,
Midnapur Charge & Ors.
With
W.P. No. 1213 (W) of 2016
M/s. Vatech Wabag Limited
Vs.
Deputy Commissioner of Sales Tax,
Midnapur Charge & Ors.
With
W.P. No. 5612 (W) of 2016
M/s. Delta Ltd.
Vs.
Appellate Forum, CD-01 & Ors.
With
W.P. No. 5614 (W) of 2016
M/s. Delta Ltd.
Vs.
Appellate Forum, CD-01 & Ors.
With
W.P. No. 1634 (W) of 2016
Asansol Alloys Pvt. Ltd.
Vs.
Deputy Commissioner of Sales Tax,
Asansol Charge & Ors.
With
W.P. No. 2098 (W) of 2016
Island Trading Co. Pvt. Ltd.
Vs.
Commercial Tax Officer, Park Street Charge & Ors.
With
W.P. No. 12179 (W) of 2016
Gyan Chand Construction Co. & Anr.
Vs.
Deputy Commissioner, Commercial Taxes,
Taltala Charge & Ors.
With
W.P. No. 7078 (W) of 2017
Pawan Kumar Agarwal
Vs.
Deputy Commissioner Commercial Taxes,
Salkia Charge & Ors.
With
W.P. No. 6007 (W) of 2017
M/s. R. Hiralal Shah & Co. (Calcutta)
Vs.
The Sr. Jt. Commissioner Commercial Tax & Ors.
With
W.P. No. 6986 (W) of 2017
Delta Enterprises & Anr.
Vs.
Sales Tax Officer, Central Audit Unit-I & Ors.
With
W.P. No. 6994 (W) of 2017
Vikram Kamalia
Vs.
Deputy Commissioner Commercial Taxes,
Salkia Charge & Ors.
With
W.P. No. 7077 (W) of 2017
Lal Murti Singh
Vs.
Deputy Commissioner Commercial Taxes,
Salkia Charge & Ors.
With
W.P. No. 25141 (W) of 2016
I & B Eng. Pvt. Ltd.
Vs.
The Deputy Commissioner Commercial Taxes,
Ultadanga Charge & Ors.
With
W.P. No. 26466 (W) of 2016
Dankuni Steels Ltd.
Vs.
The Deputy Commissioner Commercial Taxes,
Lalbazar Charge & Ors.
With
W.P. No. 26746 (W) of 2016
Mascot Petrochem Pvt. Ltd.
Vs.
The Joint Commissioner, Commercial Taxes,
Burra Bazar Circle & Ors.
With
W.P. No. 26741 (W) of 2016
Technico (India) Pvt. Ltd.
Vs.
The Senior Joint Commissioner, Commercial Taxes,
Central Audit Unit-I & Ors.
With
W.P. No. 27131 (W) of 2016
Murlidhar Ratanlal Exports Ltd.
Vs.
Sales Tax Officer, Central Audit Unit-I & Ors.
With
W.P. No. 26905 (W) of 2016
Hamon Shriram Cottrell Pvt. Ltd.
Vs.
The Joint Commissioner of Commercial Taxes,
Central Audit Unit-I & Ors.
With
W.P. No. 26750 (W) of 2016
Mascot Petrochem Pvt. Ltd.
Vs.
The Joint Commissioner, Commercial Taxes,
Burra Bazar Circle & Ors.
With
W.P. No. 27148 (W) of 2016
Smt. Kanika Maity
Vs.
The Senior Joint Commissioner, Commercial Taxes,
Midnapore Circle & Ors.
With
W.P. No. 27386 (W) of 2016
Bharat Roll Industry Pvt. Ltd.
Vs.
The Deputy Commissioner Commercial Taxes,
Park Street Charge & Ors.
With
W.P. No. 27256 (W) of 2016
Anand Jhawar
Vs.
Sales Tax Officer, Radha Bazar Charge & Ors.
With
W.P. No. 26458 (W) of 2016
Concast Global Ltd.
Vs.
Sales Tax Officer, Esplanade Charge & Ors.
With
W.P. No. 26737 (W) of 2016
Technico (India) Pvt. Ltd.
Vs.
The Senior Joint Commissioner, Commercial Taxes,
Central Audit Unit-I & Ors.
With
W.P. No. 4989 (W) of 2017
Cygnus Equipments & Rentals Pvt. Ltd.
Vs.
Deputy Commissioner, Sales Tax, Posta Bazar Charge & Ors.
With
W.P. No. 5383 (W) of 2017
Sanjay Yadav
Vs.
Joint Commissioner of Sales Tax,
24-Parganas Circle & Ors.
With
W.P. No. 5085 (W) of 2017
Debasree Mukherjee & Ors.
Vs.
Commercial Tax Officer, Behala Circle & Ors.
With
W.P. No. 5360 (W) of 2017
M/s. Venky-Hi-Tech-Ispat Ltd.
Vs.
State of West Bengal & Ors.
With
W.P. No. 5338 (W) of 2017
Essar Projects (India) Limited
Vs.
Joint Commissioner, Durgapore Charge & Ors.
With
W.P. No. 4221 (W) of 2017
Beria Commercial Impex Pvt. Ltd.
Vs.
The Deputy Commissioner Commercial Taxes,
Bhawanipore Charge & Ors.
With
W.P. No. 4397 (W) of 2017
Amit Malani, Proprietor of M/s. Classic Collection
Vs.
The State of West Bengal & Ors.
With
W.P. No. 4216 (W) of 2017
IAC Electricals Pvt. Ltd.
Vs.
Senior Joint Commissioner of Commercial Taxes,
Kolkata South Circle & Ors.
With
W.P. No. 4369 (W) of 2017
Yaash Steel Products Pvt. Ltd.
Vs.
Deputy Commissioner, Sales Tax,
Bhawanipore Charge & Ors.
With
W.P. No. 4223 (W) of 2017
Supreme Wood Products Pvt. Ltd.
Vs.
Senior Joint Commissioner of Commercial Taxes,
Corporate Division & Ors.
With
W.P. No. 3969 (W) of 2017
M/s. Universal Construction Co.
Vs.
Sales Tax Officer, Durgapur Charge & Ors.
With
W.P. No. 4218 (W) of 2017
Shristi Infrastructure Development Corporation Ltd.
Vs.
Deputy Commissioner of Commercial Taxes,
Central Audit Unit-II, Salt Lake & Ors.
With
W.P. No. 3975 (W) of 2017
Kohinoor Paper & Newsprint Pvt. Ltd.
Vs.
Senior Joint Commissioner,
Kolkata South Circle & Ors.
With
W.P. No. 3971 (W) of 2017
Kohinoor Paper & Newsprint Pvt. Ltd.
Vs.
Senior Joint Commissioner,
Kolkata South Circle & Ors.
With
W.P. No. 4057 (W) of 2017
Bluechip Concrete Pvt. Ltd.
Vs.
Sales Tax Officer, Posta Bazar Charge & Ors.
With
W.P. No. 4067 (W) of 2017
Faneesh Mishra
Vs.
Sales Tax Officer, Salt Lake Charge & Ors.
With
W.P. No. 4213 (W) of 2017
Shristi Infrastructure Development Corporation Ltd.
Vs.
Deputy Commissioner of Commercial Taxes,
Central Audit Unit-II, Salt Lake & Ors.
With
W.P. No. 5072 (W) of 2017
Pradeep Structural Development Pvt. Ltd.
Vs.
Sales Tax Officer, Shibpur Charge & Ors.
With
W.P. No. 5328 (W) of 2017
Essar Projects (India) Limited
Vs.
Joint Commissioner, Durgapore Charge & Ors.
With
W.P. No. 5074 (W) of 2017
Pradeep Structural Development
Vs.
Sales Tax Officer, Shibpur Charge & Ors.
With
W.P. No. 5580 (W) of 2017
Anand Carbo Pvt. Ltd. & Anr.
Vs.
Joint Commissioner, Commercial Taxes & Ors.
With
W.P. No. 5577 (W) of 2017
Jagadamba Industries Ltd. & Anr.
Vs.
Joint Commissioner, Commercial Taxes, Durgapur Charge & Ors.
With
W.P. No. 5582 (W) of 2017
Jagadamba Industries Ltd. & Anr.
Vs.
Joint Commissioner, Commercial Taxes, Durgapur Charge & Ors.
With
W.P. No. 5915 (W) of 2017
Shanta Chandrakant Modi
Vs.
Joint Commissioner of Sales Tax, Behala Charge & Ors.
With
W.P. No. 5914 (W) of 2017
Rangan Tradecom Pvt. Ltd.
Vs.
Sales Tax Officer, Chadni Chawk Charge & Ors.
With
W.P. No. 5909 (W) of 2017
Anurab Vanijya Pvt. Ltd.
Vs.
Sales Tax Officer, Chadni Chawk Charge & Ors.
With
W.P. No. 6168 (W) of 2017
M/s. Plano Vyapar Pvt. Ltd.
Vs.
Sales Tax Officer, Salkia Charge & Ors.
With
W.P. No. 6041 (W) of 2017
Bhim Sain Agarwal
Vs.
Sales Tax Officer, Salkia Charge & Ors.
With
W.P. No. 5983 (W) of 2017
Kusum Patodia, Proprietress of M/s. Venus Engineering Works
Vs.
Sales Tax Officer, Salkia Charge & Ors.
With
W.P. No. 5512 (W) of 2017
M./s. Universal Machines Ltd. & Anr.
Vs.
Senior Joint Commissioner & Ors.
With
W.P. No. 4209 (W) of 2017
Piyush Doshi
Vs.
The State of W.B. & Ors.
With
W.P. No. 6416 (W) of 2017
M/s. Purbanchal Udyog
Vs.
Deputy Commissioner, Commercial Taxes,
Central Audit Unit-II, Salt Lake & Ors.
With
W.P. No. 6417 (W) of 2017
Parsvanath Vanijya Pvt. Ltd.
Vs.
Deputy Commissioner, Sales Taxes, Esplanade Charge & Ors.
With
W.P. No. 6444 (W) of 2017
Aryan Distributors
Vs.
Deputy Commissioner, Sales Taxes, Ballygunge Charge & Ors.
With
W.P. No. 6810 (W) of 2017
Kalpataru Power Transmission Ltd.
Vs.
Sales Tax Officer, Siliguri Charge & Ors.
With
W.P. No. 6779 (W) of 2017
Kalpataru Power Transmission Ltd.
Vs.
Sales Tax Officer, Siliguri Charge & Ors.
With
W.P. No. 6605 (W) of 2017
Chhabra Ispat Pvt. Ltd.
Vs.
Sales Tax Officer, N.D. Sarani Charge & Ors.
With
W.P. No. 6204 (W) of 2017
M/s. Shristi Engineering Works
Vs.
Sales Tax Officer, Durgapur & Ors.
With
W.P. No. 6205 (W) of 2017
Rajpath Contractors & Engineering Ltd.
Vs.
Deputy Commissioner of Sales Taxes, Central Audit Unit-II & Ors.
With
W.P. No. 6381 (W) of 2017
Uma Devi Singh
Vs.
Sales Tax Officer, Salkia Charge & Ors.
With
W.P. No. 6382 (W) of 2017
Manoj Kumar Agarwal
Vs.
Sales Tax Officer, Salkia Charge & Ors.
With
W.P. No. 6385 (W) of 2017
Saroj Kumar Mishra
Vs.
Senior Joint Commissioner of Sales Tax, Burrabazar Circle & Ors.
With
W.P. No. 6619 (W) of 2017
M/s. SRC Metaliks Pvt. Ltd.
Vs.
Joint Commissioner, Commercial Taxes, Kolkata South Circle & Ors.
For the Petitioners : Mr. Boudhayan Bhattacharya, Advocate
Mr. Piyal Gupta, Advocate
Ms. Anindita Auddy, Advocate
Mr. Anindya Bagchi, Advocate
For the State : Mr. Abhratosh Majumdar, Sr. Advocate
Mr. Prithu Dudheria, Advocate
Mr. Soumitra Mukherjee, Advocate
Hearing concluded on : March 16, 2017
Judgment on : March 30, 2017
DEBANGSU BASAK, J.:-
The writ petitioners challenge the vires of the second proviso to
Section 84(1) of the West Bengal Value Added Tax Act, 2003. As the
writ petitions involve the same issues they are taken up for hearing
analogously.
It is submitted on behalf of the petitioners that, the second proviso
to Section 84(1) of the Act of 2003 requires payment of tax in
dispute for the purpose of maintaining an appeal against an order
in original. The requirement of payment is an exaction rather than a
pre-deposit. The Act does not postulate a pre-deposit. Since the
word used is payment in the second proviso and the effect is an
exaction of a tax, the same is beyond the legislative competence of
the state legislature. Tax in dispute is not defined under the Act of
2003. What is defined is "tax due". The word payment and pre-
deposit are different. The word payment used in the second proviso
of Section 84(1) of the Act of 2003 cannot be read to be a deposit as
the same would do violence to the plain meanings of the words used
in the later part of such proviso following the word payment.
Reliance is placed on the dictionary meaning of the words payment
and deposit. Reliance is placed on All India Reporter 2010
Calcutta page 161 (Secretary, West Bengal Council of Higher
Secondary Education v. Soumyadeep Banerjee & Ors.) and All
India Reporter 1988 Supreme Court page 1263 (Commissioner
of Income Tax, U.P.- II, Lucknow v. Bazpur Co-operative Sugar
Factory Ltd.). Various rules of the West Bengal Value Added Tax
Rules 2005 are also placed by the petitioners to contend that, the
appeal is required to be made with a payment of tax and not a
deposit or a pre-deposit.
An appellant cannot be taxed for preferring an appeal from an order
of adjudication. When tax is not defined, it is to be understood to
cover any levy. Reliance in this regard is placed on 2001 Volume 6
Supreme Court Cases 697 (Commissioner of Central Excise,
Meerut v. Kisan Sahkari Chinni Mills Ltd.). The authorities can
at best seek a deposit or a pre-deposit to secure the tax due and
adjudicated to be found due. The words deposit or pre-deposit are
not used. What is used is payment. The words used in the second
proviso to Section 84(1) do not embrace in its fold the concept of
refund. The Act does not provide for refund in the payment made
under the impugned provisions. In a given scenario, the appellant
may succeed in the appeal. The order of adjudication may be set
aside in its entirety. In such scenario, the impugned provision does
not provide for refund of the 15% payment. In all fairness, the
appellant is entitled to refund of the 15% payment along with
interest. Relying upon Judgments Today 1997 Volume 4
Supreme Court page 4 (India Carbon Ltd. v. State of Assam) it
is submitted that, the revenue is liable to pay interest on the
amount deposited.
A scenario may arise where the claim of refund has been reduced
by the order in original. The assessee needs to prefer an appeal
therefrom. As the impugned provisions stand, the appellate
authority will not entertain the appeal unless a payment of 15% of
the tax in dispute is made. Such a demand for payment of 15% is
an absurdity as, in such scenarios, no tax is due and payable by
the assessee. Rather the quantum of refund receivable by the
assessee is in dispute. Insistence of payment of 15% of the tax in
dispute in such a case from an assessee is absurd.
Relying upon 2000 Volume 7 Supreme Court Cases page 425
(Consumer Action Group v. State of Tamil Nadu), 1979 Volume
1 Supreme Court Cases page 380 (In Re: The Special Courts
Bill), (1986 Volume 3 Supreme Court Cases page 20 (Municipal
Corporation of the City of Ahmedabad v. Jan Mohd.
Usmanbhai) and All India Reporter 1992 Supreme Court page
2279 (Shyam Kishore & Ors. v. Municipal Corporation of Delhi)
it is contended on behalf of the petitioners that, the restriction
sought to be imposed by the amended provisions of Section 84 for
the purpose of preferring an appeal are not reasonable.
The introduction of the date of April 1, 2015, in the second proviso
is arbitrary and discriminatory. It discriminates amongst similarly
situated and circumstanced assessees in the sense that, an
assessing officer for an assessee may have disposed of an
assessment of a particular assessment year prior to April 1, 2015,
while another assessing officer may not have disposed of the same
assessment year before April 1, 2015. Therefore, two assesses
would be required to file appeals under two different provisions of
law for the same assessment year when the assessees are not at
fault. An order of assessment passed after April 1, 2015, would
require a payment of 15% of the amount of tax in dispute to
maintain the appeal while an order for the same assessment year
passed in respect of another assessee would not attract the rigours
of the second proviso if the same was passed prior to April 1, 2015.
This would discriminate between two assesses for the same
assessment year.
The introduction of payment of 15% of the tax in dispute from April
1, 2015 in the provisions for appeal affects a pre-existing right to
appeal of an assessee. A pre-existing right of appeal cannot be
taken away by a subsequent amendment. Reliance is placed on All
India Reporter 1953 Supreme Court page 221 (Hoosein Kasam
Dada v. State of Madhya Pradesh & Ors.), All India Reporter
1957 Supreme Court 540 (Garikapati Veeraya v. N. Subbiah
Choudhry & Ors.) and 2015 Volume 3 TMI page 634 (Kerala)
(M/s. Muthoot Finance Ltd. v. Union of India & Ors.) for such
proposition. It is contended that, at the time when the assessees
had filed their application for assessment, the amendment to the
second proviso of Section 84(1) of the Act of 2003 was not there. On
the date when the application for assessment was made, Section 84
had a different provision. Subsequent to the filing of the
application, the right to appeal cannot be affected. An assessee,
therefore, should be permitted to prefer an appeal in respect of
assessment year prior to April 1, 2015 on the basis of the provisions
of Section 84 existing at the time of presentation of the application
for assessment. Applications for assessment which were filed prior
to April 1, 2015 should be guided by the unamended provision of
Section 84 of the Act of 2003.
Section 84(1) second proviso as it stands does not permit it to be
read down. The parameters for reading a statute particularly a
taxation statute does not permit the second proviso to Section 84(1)
of the Act of 2003 to be read down. On the aspect of the reading
down of a statute and the parameters of constitutionality of a
statute reliance is placed on 1993 Volume 1 Supreme Court
Cases Page 78 (C. B. Gautam v. Union of India & Ors.), All
India Reporter 2016 Supreme Court page 4443 (Jayam & Co.
v. Assistant Commissioner & Anr.), 1973 Volume 3 Supreme
Court Cases page 17 (Commissioner of Income Tax, Gujarat v.
Vadilal Lallubhai, Etc. Etc., Commissioner of Income Tax,
Gujarat v. Sakarlal Balabhai), 1994 Volume 2 Supreme Court
Cases 534 (H.H. Lakshmi Bai & Anr. v. Commissioner of
Wealth Tax & Ors.), 2006 (286) Income Tax Reports page 89
(SC) (Arun Kumar & Ors. v. Union of India & Ors.), All India
Reporter 1981 Supreme Court page 234 (Bhim Singhji & Ors.
v. Union of India & Ors.), 2012 Volume 6 Supreme Court Cases
page 312 (State of Madhya Pradesh v. Rakesh Kohli), 2003
Volume 11 Supreme Court Cases page 405 (The Assistant
Commissioner, Assessment-II, Bangalore & Ors. v. M/s.
Velliappa Textiles Ltd. & Anr.), All India Reporter 1969
Supreme Court page 430 (Income Tax Officer v. M.K.
Mohammed Kunhi) and All India Reporter 1980 Supreme Court
1285 (Jit Ram Shiv Kumar & Ors. v. State of Haryana & Anr.).
The requirement of payment of 15% of the tax in dispute would
cause undue hardship to an assessee. In a given case, the
assessment order may be horribly wrong and may impose an
astounding outstanding which an assessee may not be able to
challenge in an appeal due to the onerous condition of payment of
15%. The requirement of 15% payment to prefer an appeal also
discriminates between a financial sound assessee and one who is
not so financially sound. A financially unsound assessee would find
it hard to prefer an appeal by reason of the onerous conditions. The
right to prefer an appeal would then stand curtailed so far as such
assessee is concerned.
An assessee has a right to appeal. It is now sought to be restricted
unreasonably. The parties rely upon 2006 Volume 13 Supreme
Court Cases page 347 (Benara Valves Limited & Ors. v.
Commissioner of Central Excise & Anr.), All India Reporter
1988 Supreme Court page 2010 (Vijay Prakash D. Mehera &
Anr. v. Collector of Customs (Preventive), Bombay), 2005 (184)
Excise Law Times page 347 (I.T.C. Ltd. v. Commissioner
(Appeals), Cus. & C. Ex., Meerut-I), 2010 (250) Excise Law
Times page 200 (Ceat Ltd. v. Union of India), 1994 Volume 69
Excise Law Times page 193 (Cal) (Bongaigaon Refinery v. Collr.
of C. Ex.), 1991 (51) Excise Law Times page 185 (SC) (Priyanka
Overseas Ltd. v. Union of India), 2001 Volume 10 Supreme
Court Cases page 740 (State of Tripura v. Manoranjan
Chakraborty & Ors.), All India Reporter 1967 Supreme Court
page 1616 (Bhawani Cotton Mills Ltd. v. State of Punjab &
Anr.) and an unreported decision of this Hon'ble Court rendered in
W.P. No. 6088(W) of 2012 (M/s. Shyam Sel and Power Ltd. v.
Union of India & Ors.) dated May 15, 2014 in this regard.
The impugned provisions are such that, it infringes upon the
fundamental right guaranteed under Article 19(1)(g) of the
Constitution of India. The right to carry on business is fettered due
to imposition of a harsh and onerous condition to prefer an appeal.
The right to prefer an appeal is rendered illusory by the impugned
provisions.
A writ petition challenging the vires of an Act is maintainable. The
petitioners rely upon All India Reporter 1985 Supreme Court
page 1147 (Ram and Shyam Company v. State of Haryana) in
support of such contention.
Learned Additional Advocate General appearing for the respondent
submits that, the constitutional validity of a fiscal statute or a taxing provision ought to be tested on the parameters as laid down in 2012 Volume 6 Supreme Court Cases page 312 (State of Madhya Pradesh v. Rakesh Kohli). Applying such tests, he submits that, the second proviso to Section 84(1) is not violative of Article 14 of the Constitution of India. He contends that, Article 14 contemplates and permits reasonable classification. In the present case, the reasonableness of the classification has not been demonstrated to be bad.
Referring to the various provisions introduced to the Act of 2003 and to the Rules of 2005 he submits that, with effect from April 01, 2015, provisions have been introduced to the Act and the Rules so as to facilitate an assessee to have an assessment in a transparent and a just manner. The amendments introduced contemplate the assessing officer making over a draft order of assessment and permitting the assessee to raise objections, if any, with regard thereto. In this manner, he submits that, an assessee is made aware of the proposed order of the assessing officer and the assessee is in a position to correct any errors in the order of assessment that may have crept in. Once such a mechanism is used for the purpose of passing a final order of assessment, an appeal against such order would lie in terms of Section 84 of the Act of 2003. An assessee is not required to pay tax in dispute or deposit any tax when the assessing officer serves a provisional order of assessment. He refers to Rule 54 (7) and Rule 57 (3) in support of his contentions. He submits that, there is a rationality in prescribing a cut of date of April 1, 2015. In view of the amendments introduced to the various provisions of the Act and the Rules, and in view of a new mechanism of passing of final order of assessment being introduced by such amendments it stands to reason that, appeals preferred after April 1, 2015, are to be treated in the manner as prescribed in the Section 84. He relies upon 2012 Volume 1 Supreme Court Cases page 226 (Union of India v. Nitdip Textile Processors). He submits that a pre-existing right of appeal can be altered by amendment. He relies upon Hoosein Kasam Dada (supra) and Garikapati Veeraya (supra) in support of his contentions.
Reliance is placed on 2012 Volume 54 VST 1 (Orissa) (Jindal Stainless Ltd. v. State of Orissa & Ors.), 2001 Volume 10 Supreme Court Cases page 740 (State of Tripura v.
Manoranjan Chakraborty & Ors.), 2000 Volume 119 STC page 138 (D.V.C. Bukaru Co-operative Stores Ltd. v. State of Bihar & Ors.), 2009 Volume 19 VST page 589 (Karnataka) (Prakrith Builders Pvt. Ltd. v. State of Karnataka & Ors.), 2011 Volume 14 Supreme Court Cases page 160 (Har Devi Asani v. State of Rajasthan & Ors.) in support of the proposition that, identical provisions in different statutes were upheld to be intra vires the Constitution.
Relying upon 2003 Volume 11 Supreme Court Cases page 40 (Harinagar Sugar Mills Ltd. v. State of Bihar & Ors.) it is submitted that, the expression payment and deposit for the purpose of entertaining of an appeal can be used interchangeably. The following issues arise for consideration in these writ petitions:-
(1) Is the second proviso to Section 84(1) of the West Bengal Value Added Tax, 2003 ultra vires the Constitution of India? (2) To what relief or reliefs, if any, are the parties entitled to?
Maintainability of a writ petition challenging the vires of an Act cannot be doubted. The respondents have not contended that, the writ petitions are not maintainable. Ram and Shyam Company (supra) is cited by the petitioners and concerns the maintainability of a writ petition where there is an effective adequate alternative remedy available. It is of the view that, the rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than a rule of law. The present writ petitions are maintainable.
Section 84(1) of the Act of 2003 is as follows:-
"84. Appeal against provisional or other assessment.- (1) Any casual dealer or dealer may, in the prescribed manner, appeal to the Commissioner, the Special Commissioner, the Additional Commissioner or any person appointed under sub-section (1) of section 6 to assist the Commissioner as may be prescribed to exercise the power under the section against a provisional assessment or any other assessment, within forty-five days or such further period as may be allowed by the said authority for cause shown to his satisfaction from the receipt of a notice of demand in respect thereof:
Provided that where the total amount of tax, interest, late fee or penalty in dispute in an appeal is in excess of rupees twenty lakh, such appeal may lie before an appellate forum as may be constituted by the Commissioner, consisting of one or more Special Commissioner or Additional Commissioner or any person appointed under sub- section (1) of section 6 to assist the Commissioner, and the appellate forum shall act as the appellate authority in disposing of such appeal under this section:
Provided further that no appeal for any period submitted on or after the 1st day of April, 2015, shall be entertained by the said authority unless it is satisfied that the applicant has produced the documents relating to proof of payment of -
(a) full amount of tax, interest, penalty or late fee, as the case may be, as the applicant may admit to be due from him, and
(b) fifteen per centum of the amount of tax in dispute in such appeal:
Provided further that where the payment of tax due from a registered dealer stands deferred under section 116, an appeal shall, notwithstanding that the tax admitted to be due from him has not been paid, be entertained."
Rules 138 and 139 of the West Bengal Value Added Tax Rules, 2005 are also relevant.
The vires of the second proviso of Section 84(1) is in question in these writ petitions. The parties cite a number of authorities to establish the parameters on which a challenge to the constitutional validity of a statute is required to be considered by a Court. C. B. Gautam (supra) is of the view that, in order to save a statute or a part thereof from being struck down it can be suitably read down. However, such reading down is not permissible where it is negatived by the express language of the statute. Arun Kumar & Ors. (supra) is of the view that, in considering the validity of a statute the presumption is always in favour of constitutionality and the burden is upon a person who attacks it to show that there has been transgression of constitutional principles. A Court may take into consideration of matters of common knowledge, reports, preamble, history of times, object of the legislation and all other facts which are relevant for sustaining the constitutionality. Bhim Singhji & Ors. (supra) notes Lord Denning as saying that, a Judge should not be the servant of the words used. He should not be a mere mechanic in the powerhouse of semantics. Justice Krishna Iyer in Bhim Singhji & Ors. (supra) says that, "reading down meanings of words with loose lexical amplitude is permissible as part of the judicial process. To sustain a law by interpretation is the rule. To be trigger- happy in shooting at sight every suspect law is judicial legicide. Courts can and must interpret words and read their meanings so that public good is promoted and power misuse is interdicted." Velliappa Textiles Ltd. & Anr. (supra) is of the view that, Courts cannot fill up the lacuna in an ill-drafted and hasty legislation. M.K. Mohammed Kunhi (supra) is of the view that, there is no room for what could be called equitable construction applies only to the taxing part of the statute and not to its procedural part. Jayam & Co. (supra) deals with Tamilnadu Value Added Tax of 2006. It considers the parameters for testing the validity of retrospective operation of fiscal laws. Retrospectivity per se is not the issue in the present writ petition. H.H. Lakshmi Bai & Anr. (supra) is of the view that, a taxing statute has to be strictly construed. There is no equity in taxing provision. Moreover, consideration of a hardship as a result of strict construction is not relevant. Vadilal Lallubhai (supra) deals with transfer of shares prior to liquidation of an incorporated company. M/s. Jit Ram Shiv Kumar & Ors. (supra) deals with principle of estoppel against the Government and a Municipal Committee. It holds that, the plea of estoppel is not available to prevent a Municipality from acting in accordance with law. The ratio laid down therein is not attracted to the facts of the present case.
The principles which a Court is required to have regard to while deciding the challenge to the constitutional validity of a taxation law are noted in Rakesh Kohli (supra). It says in paragraph 32 as follows:-
"32. While dealing with constitutional validity of a taxation law enacted by the Parliament or State Legislature, the court must have regard to the following principles:
(i) There is always presumption in favour of constitutionality of a law made by the Parliament or a State legislature,
(ii) No enactment can be struck down by just saying that it is arbitrary or unreasonable or irrational but some constitutional infirmity has to be found,
(iii) The court is not concerned with the wisdom or unwisdom, the justice or injustice of the law as Parliament and State Legislatures are supposed to be alive to the needs of the people whom they represent and they are the best judge of the community by whose suffrage they come to existence,
(iv) Hardship is not relevant in pronouncing on the constitutional validity of a fiscal statute or economic law, and
(v) In the field of taxation, the legislature enjoys greater latitude for classification.
..........................................................................." Section 84 of the Act of 2003 deals with appeal against provisional or other order of assessment. It recognizes the right of an assessee to prefer an appeal against a provisional or other order of assessment.
Apart from the requirement of filing requisite documents to establish the claims, there are three parts to the second proviso of Section 84(1) of the Act of 2003. The first part is that any appeal presented on or after April 1, 2015 must fulfil the rigors specified in that proviso. The second part is clause (a) of the second proviso which requires an appellant to deposit the entirety of the amount of tax, interest, penalty or late fee as the appellant admits to be due and payable. The third part is the requirement of payment of 15% of the amount of tax in dispute in such appeal. There is no dispute with regard to the second part of the second proviso of Section 84(1) of the Act of 2003. The first and the third parts are causing heartburns for the petitioners. According to the petitioners, the word "payment" used in the second proviso of Section 84(1) of the Act of 2003 regulates and guides both clause (a) and clause (b) of such proviso. The petitioners contend that, the word "payment" used in the second proviso cannot be read down as a pre-deposit or a deposit as such reading down will do violence to sub-clause (a) of the second proviso. That being the position, where clause (a) allows payment of the admitted liability which includes tax, interest, penalty or late fee, as the case may be, then the same word "payment" cannot take a different meaning or a contour while regulating clause (b) of the second proviso.
The petitioners press into service the meaning of the word "payment", "deposit" and "pre-deposit" as appearing in the dictionary. Black's Law Dictionary defines "Payment" to mean performance of an obligation by the delivery of money or some other valuable thing accepted in partial or full discharge of the obligation. Also the money or other valuable thing so delivered in satisfaction of an obligation. This meaning is contrasted with the meaning of "deposit" which according to the petitioners, relying upon the Black's Law Dictionary means, the act of giving money or other property to another who promises to preserve it or to use it and return it in kind. Pre-deposit means to deposit beforehand or for future use. According to the petitioners, the word "payment" cannot assume a different contour as a deposit or a pre-deposit for the purpose of guiding clause (b) of the second proviso to Section 84(1) of the Act of 2003.
Soumyadeep Banerjee (supra) is a Full Bench decision dealing with the word "deposit" in the context of a direction by a Court to make such deposit. Bazpur Co-operative Sugar (supra) notes that, the essence of a deposit is that, there must be a liability to return it, by the party, to whom or whose behalf the deposit was made, on the fulfilment of certain conditions. Kisan Sahkari Chinni Mills Ltd. (supra) considers the Central Excise Act and finds that, taxes as such are not defined in the Central Excise Act. In such context it says, if the expression tax is to be understood in the absence of any definition, it would certainly cover any levy. Harinagar Sugar Mills Ltd. (supra) has to be read in the context of a prior decision of the Hon'ble Supreme Court reported 1999 Volume 9 Supreme Court Cases page 620 (Belsund Sugar Co. Ltd. v. State of Bihar). It cannot be said that the words "payment" and "deposit" can be used interchangeably as suggested on behalf of the State.
When one is making a deposit or a pre-deposit of money, as is required to prefer an appeal under Section 84 of the Act of 2003, one is called upon to pay a sum of money. Such payment would obviously await the disposal of the appeal. On the assessee succeeding in the appeal, such money is required to be either refunded with accrued interest or allowed to adjust against any liability of the assessee, as the case may be. Viewed from such perspective, the word "payment" is a genus in which deposit or the pre-deposit is a specie. The word "payment" used in the second proviso guides both clauses (a) and (b). Clause (a) requires a payment and there is no dispute with regard thereto. So far as the clause (b) is concerned, it is contended that, the word "payment" does violence to such clause, as in effect, if the word "payment" is allowed to govern clause (b) then, the State is requiring an exaction from an assessee rather than asking the assessee to make a deposit or a pre-deposit. With respect, I am not in a position to accept such contention on behalf of the petitioners. No doubt the word "payment" governs both clauses (a) and (b) of the second proviso. However, the word "payment" is capable of different meanings in the context that it is used. The word "payment" can mean payment of a deposit or a pre-deposit in the context of clause (b) and the payment of a tax in the context of clause (a). Viewed from such perspective, there is no violence to the user of the words in the second proviso to Section 84(1) of the Act of 2003. It can be contended that, the words in the second proviso are clear and that, clause (b) does not speak of a deposit or a pre-deposit for a person or the Court to read the word "payment" while regulating clause (b) as a payment of a deposit. This contention assumes that, the Section 84 requires a payment of tax of 15 per cent of the tax in dispute to prefer an appeal. That assumption, with the greatest of respect, is not available in the context. The State has not imposed a tax to prefer an appeal. Learned Additional Advocate General says that, the State does not read Section 84 to be so. According to him, it is a deposit which would abide by the result of the appeal, that is to say that, on the appellant succeeding in the appeal, the amount deposited in terms of the second proviso to Section 84(1) would be refunded to the appellant along with interest. Deposit of 15% tax in dispute in terms of the second proviso to Section 84(1) is not a tax and cannot be turned as an exaction.
It is contended on behalf of the petitioners that, second proviso does not contemplate that, the authorities will refund the 15% tax deposited on the assessee successfully sustaining an appeal from an order in original. Section 62 of the Act of 2003 deals with refund of tax, penalty or interest paid by an assessee in excess of the tax due. It mandates the Commissioner, subject to other provisions of the Act of 2003, to refund to an assessee any amount of tax, penalty or interest paid by such assessee in excess of the amount due from it under the Act. Therefore, on successful completion of an appeal in favour of the assessee, it would be entitled to refund of the deposit made under the second proviso to Section 84(1) of the Act of 2003. Moreover, Section 36 of the Act of 2003 contemplates grant of interest by the department for the period of delay in making refund. Therefore, reading Section 84(1) together with Sections 62 and 36 thereof, an assessee on successful completion of an appeal will receive the refund along with interest, interest being payable if there is a delay in making refund. In such circumstances, no assessee stands prejudiced by depositing 15% along with the appeal. It will receive the amount deposited in excess of the tax due along with interest in terms of Section 36 in the event of successful completion of its appeal in its favour. India Carbon Ltd. (supra) is a case where the question was whether interest can be levied and charged on delayed payment of tax. It holds that, there is no substantive provision in the Central Excise Act which obliges the assessee to pay interest on delayed payment of Sales Tax. The authority is not relevant to the issues under consideration in these writ petitions.
It is contended on behalf of the petitioners that, a scenario may arise where the assessee has applied for a refund and the order in original has reduced the quantum of refund to be received by the assessee. In such circumstances, asking an assessee to put in 15% of tax in dispute while preferring an appeal under Section 84(1) in terms of second proviso thereto would be misreading of such section. Learned Additional Advocate General submits that, such a scenario has not arisen in any of the petitions under consideration. He, however, submits that, in such circumstances an assessee is not required to deposit 15 % of the tax in dispute as the order in original does not impose a positive tax incidence on the assessee concerned. In such scenario no deposit is required to be made under the second proviso to Section 84(1) of the Act of 2003. This point is, therefore, disposed of by placing on record such contention on behalf of the State. An assessee applying for refund and such claim for refund having been reduced, an assessee preferring an appeal against such reduction is not required to deposit 15% of the tax in dispute in terms of the second proviso to Section 84(1) of the Act of 2003. This recording cannot be construed to mean that, when there is a demand for tax in the order of assessment, the assessee will be permitted not to deposit the requisite 15% on the ground that, it had claimed refund and the order of assessment is one of demand for tax.
Benara Valves Limited & Ors. (supra) concerns undue hardship of an assessee. It takes notes of the principles of safeguarding the interest of revenue also. It explains the expression of undue hardship and the safeguard of interest of revenue as used in Section 35F of the Central Excise Act, 1944. It is of the view that, undue hardship is caused when the hardship is not warranted by the circumstances. For a hardship to be undue it must be shown that the particular burden to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from the compliance with it.
The second proviso to Section 84(1) requires a deposit of 15% of the tax in dispute. Requirement of making such a deposit cannot, ipso facto, be construed as hardship let along such hardship to be undue. An assessee declares it own tax liability. The assessing officer looks into such claims. It makes over a draft assessment order to the assessee for comments, if any. The assessing officer, thereafter, proceeds to pass the final order of assessment after taking into consideration the objections raised by the assessee. An assessee may find itself aggrieved by such final order. It is then required to make a 15% deposit of the tax in dispute to prefer the appeal. Such deposit would obviously abide by the result of the appeal. In the event of the assessee succeeding in the appeal, the deposit would be refunded. This mechanism of adjudication cannot be said to cause any hardship, let alone, undue hardship unless an assessee contends that, the requirement to pay Value Added Tax under the Act of 2003 itself is hardship. Such is not the contention of the petitioners.
In the present case, if an assessee complies with the requirements under the second proviso of Section 84(1) of the Act of 2003, then the revenue would not be proceeding to realize the balance of the sum due. Therefore, effectively by depositing 15% of the tax in dispute, an assessee will receive an order of stay of recovery proceeding. This cannot be said to be hardship let alone undue hardship. Requirement of a pre-deposit is not a hardship. Moreover, hardship is not a relevant factor to be taken into consideration in interpreting a fiscal statute as noted in Rakesh Kohli (supra). Vijay Prakash D. Mehera & Anr. (supra) concerns orders passed under Section 129 A to E of the Customs Act, 1962. It notes that the proviso in Section 129E of the Customs Act gives a discretion to the authority to dispense with the obligation to deposit in case of undue hardship. In the present case, the statute itself requires a deposit of 15 per cent. The question of exercise of discretion, therefore, would not arise. Similarly I.T.C. Ltd. (supra) concerns a pre-deposit under the Customs Act, 1962. Ceat Ltd. (supra) concerns Section 35F of the Central Excise Act, 1944. It sets aside a direction for deposit and replaces the same with a liberty to furnish a bond. Bongaigaon Refinery (supra) concerns exercise of discretion under Section 35F of the Central Excise and Salt Act, 1944. Priyanka Overseas Ltd. (supra) is of the view that, the department cannot take advantage of its own wrong. Shyam Sel and Power Ltd. (supra) concerns a direction issued by the Customs Excise and Service Tax Appellate Tribunal for deposit of a sum as a condition for hearing the appeals. It deals with Section 35F of the Central Excise Act, 1944. It is of the view that, pre- deposit is to be waived in case of extreme hardship. It recognizes that, just as a financial inability to make pre-deposit can lead to hardship, payment of an amount which is not payable, under compulsion, also leads to hardship. When a strong prima facie case is made out and where an assessee has an arguable case, pre- deposit should be waived. Manoranjan Chakraborty & Ors. (supra) deals with the challenge to proviso to Section 20(1) and Section 21(2) of the Tripura Sales Tax Act. Such sections had provided that no appeal/revision against an order would be entertained unless the amount of tax assessed or the penalty levied is paid, discretion being given to the authority for permitting payment of not less than 50 per cent of the tax assessed or the penalty levied. The High Court had struck down those provisions. The Supreme Court finds the impugned provisions to be valid. Bhawani Cotton Mills Ltd. (supra) is of the view that, if a person is not liable for payment of tax at all, at any time, collection of a tax from him with a possible contingency of refund at a later stage will not make the original levy valid. It is not the case of the petitioners that they are not liable to pay any tax at all. Therefore, the ratio of Bhawani Cotton Mills Ltd. (supra) is not attracted. The second proviso to Section 84(1) of the Act of 2003 cannot, therefore, be struck down on the ground of causing undue hardship to an assessee.
It is contended on behalf of the petitioners that, the introduction of the cut-off date of April 1, 2015 in the second proviso to Section 84(1) of the Act of 2003 is arbitrary. It seeks to discriminate amongst similarly situated and circumstanced assessees. With respect, such is not the case. April 1, 2015 has been introduced in order to keep it sync with the introduction of various other amendments to the various other provisions to the Act of 2003. Significantly, the manner of adjudication leading to the assessment order for an assessment year stands altered with effect from April 1, 2015 irrespective of the year of assessment involved. The relevant sections of the Act of 2003 and the Rules framed thereunder have been amended so as to facilitate an assessee to have a draft order of assessment so that such assessee can make its comments with regard to the proposed order of assessment. After consideration of such comments, a final order of assessment is prepared. This mechanism of assessment is irrespective of the year of assessment involved. Any order of assessment done after April 1, 2015 is required to follow such a procedure. The petitioners are not assailing the other provisions of the Act of 2003 which introduces this piece of amendment beneficial to the assessee. What the petitioners are saying is that, the introduction of the requirement of a deposit of 15% in terms of the second proviso with effect from April 1, 2015 is arbitrary. They are not assailing the modified and a more beneficial and transparent method of adjudication. They accept the same. They, however, contend that, so far as the appeal is concerned, they should be guided by the provisions applicable prior to the amendments introduced to the second proviso on Section 84(1). The petitioners seek to have, by such contention best of both worlds. They seek to take the advantage of the amendments being introduced to the various provisions of the Act of 2003 permitting a more transparent and a beneficial method of assessment so far as an assessment is concerned, and on the other hand, not accept the appeal provision which is founded upon the amendments introduced to the other provisions of the Act of 2003 and the Rules framed thereunder. The contentions of the petitioners, if accepted, would mean accepting a process of adjudication which stands altered from April 1, 2015 and subject the final order passed after applying such modified process of adjudication, to an appeal which remains unaltered prior to the introduction of the amendments for the modified version of adjudication.
Nitdip Textile Processors (supra) states the test to determine reasonability of classification, particularly in taxation laws. It is of the view that, the legislature enjoys a far wide latitude in classification of objects, persons and things for taxation purpose in view of inherent complexity of fiscal adjustment of diverse elements. It considers Kar Vivad Samadhan Scheme, 1998 and the cut-off date prescribed therein. It finds that KVSS, 1998 could not be said to be ultra vires the Article 14 merely because the cut-off date prescribed therein resulted in disadvantage to some individual assessee. In the present case, disadvantage to an assessee has not been substantiated. Moreover, as held in Nitdip Textile Processors (supra), prescription of April 1, 2015 causing any disadvantage to an individual assessee is no ground to say that such prescription is ultra vires Article 14.
M/s. Muthoot Finance Ltd. (supra) is of the view that, the right of appeal that is vested to an assessee is to be governed by the law prevailing at the date of institution of the proceedings and not by the law that prevails at the date of its decision or at the date of filing of the appeal. This authority is not applicable to the present petitions as the method of adjudication stands altered and the petitioners have not challenged such altered method of adjudication. Rather they are the beneficiaries of such altered method now seeking to contend that the resultant appeal provisions consequent to the altered adjudicating procedure is allegedly affecting their rights. The right to prefer appeal has not been taken away.
The respondent cites few authorities for the proposition that, similar provisions as that of the second proviso to Section 84(1) of the Act of 2003 were upheld.
Har Devi Asani (supra) is of the view that, a right of appeal or right of revision is not an absolute right, but a statutory right. Grant of such right can be circumscribed by conditions imposed by statute. It considers Section 65(1) of the Rajasthan Stamp Act, 1998 which requires deposit of 50 per cent of payment before revision is entertained. It is of the view that, such requirement does not render the right of revision illusory. The Patna High Court, Ranchi Bench dealing with D.V.C. Bukaru Co-operative Stores Ltd. (supra) considers requirement of deposit to prefer an appeal. It notes Manoranjan Chakraborty & Ors. (supra). It holds that, such a requirement is not exorbitant and does not impose any onerous or unreasonable conditions on the right of appeal. Jindal Stainless Ltd. (supra) concerns Section 77(4) of the Orissa Value Added Tax which provides that, no appeal against an order shall be entertained by the appellate authority unless it is accompanied by statutory proof of payment of admitted tax in full or 20% tax or interest or both in dispute. It is of the view that, requirement of deposit of 20% of the tax or interest or both in dispute as a pre- condition in entertaining an appeal does not make the right of appeal illusory and that, such a condition is within the legislative power of the State legislature. It cannot be held to be unreasonable and violative of the Constitution of India. In Prakrith Builders Pvt. Ltd. (supra) the Karnataka High Court considers the validity of Section 22(5) of the Karnataka Sales Tax Act, 1957 which requires a deposit of 50% for the purpose of preferring an appeal. It is of the view that, such provision does not violate the right to prefer an appeal or the right to carry on business under Article 19 of the Constitution of India.
In Consumer Action Group (supra) the constitutional validity of Section 113 of the Tamil Nadu Town and Country Planning Act, 1971 was under challenge. It is of the view that, a statutory provision conferring wide power on the authority does not ipso facto result in arbitrariness. Such a provision will not be ultra vires if the legislative policy can be gathered from the preamble, statement of objects and reasons and the relevant provisions of the Act and Rules. Shyam Kishore & Ors. (supra) deals with the constitutional validity of the appeal provisions under the Delhi Municipal Corporation Act, 1957 and finds it to be intra vires. In the special reference being the Special Courts Bill (supra) the constitutionality of the Special Courts Bill, 1978 was considered. Jan Mohd. Usmanbhai (supra) considers the reasonableness of restriction or prohibition imposed in relation to closure of Municipal slaughter houses.
A right of appeal is a substantive right. It accrues on the date when the application is filed. Such right being recognized by statute gets vested to the applicant on the filing of the application. Hoosein Kasam Dada (India) Ltd. (supra) is of the view that, an intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention is clearly manifested by express words or necessary implication. The majority view in Garikapati Veeraya (supra) is that, a right of appeal is a vested right. Such right accrues to a litigant and exists as on and from the date the lis commences. Such right is to be governed by the law prevailing at the date of the institution of the suit or proceedings and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. This vested right of appeal can be taken away only by a subsequent enactment, if it so provided expressly or by necessary intendment by any subsequent enactment. Hoosein Kasam Dada (India) Ltd. (supra) is noted therein. The pre-existing right of appeal, therefore, can be modulated by a subsequent enactment. The Act of 2003 underwent few amendments. Amendments were introduced to Section 43 and 46. The rules framed under the Act of 2003 also underwent few amendments. In the present case, relevant amendments to the rules are Rule 54(7) and Rule 57(3). The amendments to Sections 43 and 46 and to Rules 54(7) and 57(3) provide that, in the case of audit assessment under Section 43 read with Rule 54(7) and in case of regular assessment under Section 46 read with proviso to rule 57(3) an assessee would be supplied with the gist of the findings for raising objections to such proposed findings contained in the draft assessment order. The final assessment order would be made only after consideration of the draft assessment order and the objections raised with regard thereto. The petitioners have availed of such a procedure for the purpose of having the assessment done. Once the petitioners have accepted such procedure for assessment, they cannot be allowed to contend that, with effect from April 1, 2015 their right of appeal stands altered to their prejudice. The right of appeal altered with effect from April1, 2015 is in consonance with the amendments introduced to the assessment procedure. The petitioners have accepted the assessment procedure. They are, therefore, bound to accept the appeal provisions also.
The right to carry on business guaranteed under Article 19(1)(g) of the Constitution is not absolute. It is subject to reasonable restrictions. No right of the petitioners to carry on business stands infringed by the second proviso to Section 84(1) of the Act of 2003. The right to prefer the appeal is sought to be made conditional. Conditions imposed have not been found to be unreasonable, arbitrary or violative of any provisions of the Constitution. The provisions for appeal, therefore, cannot be said to have violated the right guaranteed under Article 19(1)(g) of the Constitution of India. The first issue is, therefore, answered in the negative and against the petitioners.
So far as the second issue is concerned, a period of time has elapsed from the date of filing of the writ petition till its disposal. The time limit prescribed for preferring an appeal has elapsed. In order not to prejudice any of the parties to the lis, it would be appropriate to direct that the petitioners would be at liberty to prefer an appeal from the order of assessment within a period of 4 weeks from date, subject to the petitioners complying with all other provisions required for the purpose of preferring an appeal. In the event, an appeal is preferred within the time period stipulated herein, the appellate authority will treat such appeal to be within the period of limitation. The department will not take the point of limitation in such an eventuality.
W.P. No. 1211(W) of 2016, W.P. No. 1212(W) of 2016, W.P. No. 1213(W) of 2016, W.P. No. 5612(W) of 2016, W.P. No. 5614(W) of 2016, W.P. No. 1634(W) of 2016, W.P. No. 2098(W) of 2016, W.P. No. 12179(W) of 2016, W.P. No. 7078(W) of 2017, W.P. No. 6007(W) of 2017, W.P. No. 6986(W) of 2017, W.P. No. 6994(W) of 2017, W.P. No. 7077(W) of 2017, W.P. No. 25141(W) of 2016, W.P. No. 26466 (W) of 2016, W.P. No. 26746(W) of 2016, W.P. No. 26741(W) of 2016, W.P. No. 27131(W) of 2016, W.P. No. 26905(W) of 2016, W.P. No. 26750(W) of 2016, W.P. No. 26148(W) of 2016, W.P. No. 27386 (W) of 2016, W.P. No. 27256(W) of 2016, W.P. No. 26458(W) of 2016, W.P. No. 26737 (W) of 2016, W.P. No. 4989(W) of 2017, W.P. No. 5383(W) of 2017, W.P. No. 5085(W) of 2017, W.P. No. 5360(W) of 2017, W.P. No. 5338(W) of 2017, W.P. No. 4221(W) of 2017, W.P. No. 4397(W) of 2017, W.P. No. 4216(W) of 2017, W.P. No. 4369(W) of 2017, W.P. No. 4223(W) of 2017, W.P. No. 3969(W) of 2017, W.P. No. 4218(W) of 2017, W.P. No. 3975(W) of 2017, W.P. No. 3971(W) of 2017, W.P. No. 4057(W) of 2017, W.P. No. 4067(W) of 2017, W.P. No. 4213(W) of 2017, W.P. No. 5072(W) of 2017, W.P. No. 5328(W) of 2017, W.P. No. 5074(W) of 2017, W.P. No. 5580(W) of 2017, W.P. No. 5577(W) of 2017, W.P. No. 5582(W) of 2017, W.P. No. 5915(W) of 2017, W.P. No. 5914(W) of 2017, W.P. No. 5909(W) of 2017, W.P. No. 6168(W) of 2017, W.P. No. 6041(W) of 2017, W.P. No. 5983(W) of 2017, W.P. No. 5512(W) of 2017, W.P. No. 4209(W) of 2017, W.P. No. 6416 (W) of 2017, W.P. No. 6417(W) of 2017, W.P. No. 6444(W) of 2017, W.P. No. 6810(W) of 2017, W.P. No. 6779(W) of 2017, W.P. No. 6605(W) of 2017, W.P. No. 6204(W) of 2017, W.P. No. 6205(W) of 2017, W.P. No. 6381(W) of 2017, W.P. No. 6382(W) of 2017, W.P. No. 6385(W) of 2017 and W.P. No. 6619(W) of 2017 are disposed of accordingly. Interim orders, if any, stand vacated. No order as to costs.
Urgent certified website copies of this judgment, if applied for, be made available to the parties upon compliance of the requisite formalities.
[DEBANGSU BASAK, J.]