Rajasthan High Court - Jaipur
Perfetti Van Melle India Pvt Ltd vs State Of Raj And Ors on 28 January, 2011
Author: Ajay Rastogi
Bench: Ajay Rastogi
In the High Court of Judicature for Rajasthan Jaipur Bench, Jaipur O R D E R S.B. Civil Writ Petition No.1237/2011 Perfetti Van Melle India Pvt. Ltd. Vs. State of Raj. & Ors. Date Of Order :: 28/01/2011 Hon'ble Mr. Justice Ajay Rastogi Mr. Manish Sharma, for petitioner. Mr. R.B. Mathur, for respondent.
Mr. Mathur has entered caveat on behalf of respondent-department.
With consent of the parties, the matter has been finally heard and being decided by the present order.
The foremost grievance of the petitioner in approaching this Court is that against the order of the Deputy Commissioner (Appeals) dt.21.01.2011 served upon him on 25.01.2011, he has a right to prefer appeal u/s.83(2) of the Rajasthan Value Added Tax Act,2003 before the Tax Board within 90 days of the date from which the order sought to be appealed against was communicated to him in writing.
Counsel for petitioner submits that before the petitioner could avail the remedy of appeal provided under the statute, notice dt.25.01.2011 has been sent to his banker regarding encashment of demand raised by the respondent pursuant to order of the Deputy Commissioner (Appeals) dt.21.01.2011.
Counsel further submits that the demand pursuant to order of Deputy Commissioner (Appeals) is subject to appeal u/s.83(2) which the petitioner intends to prefer since its rights are seriously jeopardized if realized by the respondent pursuant to impugned notice served, the very purpose of filing appeal u/s.83(2) and so also the stay application for grant of interim relief u/s.83(7) of the Act will be frustrated.
Counsel further submits that right to appeal being available to the petitioner to prefer within 90 days of the date from which the order sought to be appealed against, in ordinary course the department cannot be held to be justified in raising demand pursuant to the order of Deputy Commissioner (Appeals) during the period of limitation depriving the assessee in availing its right to appeal which the statute confers upon.
Counsel for the respondent on the other hand submits that the rule making authority has taken note of the demand to be kept in abeyance under rule 24 assessed by the assessing authority but there is no provision as far as keeping the demand in abeyance determined and confirmed by the Deputy Commissioner (Appeals) under the present scheme of Act,2003 is concerned. He further submits that only notice has been sent to their banker but the demand has not so far been realized from the petitioner's account only for the reason that the petitioner if prefers appeal must get some reasonable time in availing the remedy conferred upon it by the statute.
The apprehension raised by the petitioner pursuant to notice dt.25.01.2011 served upon it appears to be bonafide and once the order of Deputy Commissioner (Appeals) dt.21.01.2011 being served upon the petitioner on 25.01.2011 and the limitation for filing appeal before the Tax Board is 90 days commencing from the date on which it was sought to be appealed being communicated to the assessee is always expected to have some reasonable time to prefer appeal u/s.83(2) and so also application for grant of interim relief which the statute provide u/s.83(7) of the Act and during such period the application for interim relief being preferred by the assessee is examined by the Tax Board if the demand pursuant to the order of Deputy Commissioner (Appeals) is realized, this Court finds substance in the submission made that it will certainly prejudice his right to appeal adjudicated before the Tax Board conferred by the statute u/s.83(2) of the Act. It is however made clear that this Court has not examined the dispute on merits but confines its observations only as to whether the department could be held justified in realizing the tax/penalty or interest in terms of the order of Deputy Commissioner (Appeals) before the right to appeal of the assessee being adjudicated by the Tax Board u/s.83(7) of the Act.
Consequently, this writ petition is disposed of with the direction that the future proceedings pursuant to notice served upon the petitioner dt.25.01.2011 (Annx.1) in pursuance of the order of the Deputy Commissioner (Appeals) dt.21.01.2011 shall remain in abeyance for a period of thirty days from today. However, the appeal and so also the application for interim relief, if any, is preferred within such period, it is expected from the Tax Board to hear and pass appropriate orders before the expiry of the period stipulated supra in accordance with law. It is further made clear that the Tax Board may not be influenced by the observations made by this Court (supra).
(Ajay Rastogi),J.
VS Shekhawat/-p.4 1237cw11Jan28FnlDspsVAT.doc