Bombay High Court
Mclloyd And Co vs The State Of Maharashtra And 2 Ors on 26 October, 2018
Author: M. S. Sonak
Bench: M. S. Sanklecha, M. S. Sonak
Shridhar Sutar 1 20-wp-1951-18.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1951 OF 2018
M/s. Mclloyd & Co. ... Petitioner
Versus
The State of Maharashtra and others ... Respondents
.....
Mr. C. B. Thakar a/w Mr. Rahul Thakar for the Petitioner.
Mr. Dushyant Kumar for the Respondents.
.....
CORAM : M. S. SANKLECHA &
M. S. SONAK, JJ.
DATE : 26th OCTOBER, 2018. P. C.:
1. This petition under Article 226 of the Constitution of India challenges the order dated 5th March, 2018 passed by the Maharashtra Sales Tax Tribunal passed under Section 26(b) of the Maharashtra Value Added Tax Act, 2002 (MVAT Act). By the impugned order the Tribunal directed stay of the order dated 15 th March, 2017 passed by the Deputy Commissioner of Sales Tax (Appeals) on the petitioner's depositing an amount of Rs. 33.64 Lakh out of a total demand inclusive of interest at Rs. 1.90 Crores.
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2. The impugned order of the Tribunal records the fact that for the period from 2008-2009 assessment was completed on 30 th March, 2013 denying the appellant's claim of input tax credit. This resulted in an aggregate demand of Rs.1.90 Crores (inclusive of interest).
3. Being aggrieved with the assessment order dated 30th March, 2013 the petitioner had filed a First Appeal to the Deputy Commissioner of Sales Tax (Appeals). In the first Appeal a part payment was ordered by the First Appellate Authority on 11 th June, 2014 for stay of the assessment order pending disposal of the Appeal.
4. Being aggrieved with by the order dated 11th June, 2014, the petitioner filed an appeal before the Tribunal. The Tribunal after hearing the parties by order directed the petitioner to deposit a sum of Rs. 33.64 Lakh on or before 31st July, 2014 for stay of the assessment order.
5. Admittedly, the petitioner did not deposit the part payment as directed by the Tribunal into the Government Treasury till the Tribunal passed the impugned order or even till date. Thereafter, 2 of 6 Shridhar Sutar 3 20-wp-1951-18.doc the First Appeal was decided by the Deputy Commissioner of Sales Tax (Appeal) by order dated 15th March, 2017 confirming the assessment order dated 30th March, 2013.
6. Being aggrieved by the order dated 15 th March, 2017, of the First Appellate Authority the petitioner challenged the same before the Tribunal. In that Appeal the petitioner took out an application to stay the order dated 15th March, 2017 of the First Appellate Authority, leading to the impugned order of the Tribunal.
7. The impugned order dated 5th March, 2018 of the Tribunal records the fact that its earlier order directing the petitioner to deposit Rs. 33.64 Lakh for stay of the assessment order was not complied with by the petitioner till the passing of the impugned order. In these circumstances it was of the view that there is no occasion to vary the earlier order directing the petitioner to deposit Rs.33.64 Lakh out of aggregate demand of Rs. 1.90 Crores passed by it earlier. This earlier order was neither complied with by the petitioner nor was it challenged before any higher forum.
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8. Mr. Thakar, learned Counsel appearing in support of the petition submits that the impugned order of the Tribunal would require interference. This as it is not taken into account the decision of the Tribunal in the case of M/s. Mahalaxmi Cotton Ginning Pressing and Oil Industries VAT Second Appeal No.195 of 2015 decided on 20/10/2017. Besides, it is submitted that the cause of action in this appeal is different from that when the earlier order was passed by the Tribunal. Therefore, it should have considered the submission on merits and not dismissed it as on account of not complying with its earlier order. Besides, Mr. Thakar submits that the petitioner is in financial difficulty. However nothing is on record to support the same nor was any submission with regard to find hardship made before the Tribunal.
9. It is a settled position that while exercising our extraordinary writ jurisdiction, the conduct of the petitioner is an important factor to decide whether the Court should exercise it in favour of the petitioner. We find that the petitioner had approached the Tribunal in earlier round of proceedings and he was directed to deposit an amount of Rs. 33.64 Lakh on or before 31st July, 2017 for stay of the assessment order. The petitioner 4 of 6 Shridhar Sutar 5 20-wp-1951-18.doc did not comply with the directions of the Tribunal nor did the petitioner challenge it. Thereafter on 15th March, 2017 an order was passed by the First Appellate Authority confirming the assessment order dated 30th March, 2013. The same has now been challenged before the Tribunal and the stay of the First Appellate order (which upheld the order in original) is sought by the petitioner. This without any explanation, as to why the petitioner did not comply with the earlier orders of the Tribunal in respect of stay of the assessment order passed by the Tribunal. It must be appreciated that the order of the Tribunal passed under the Act, has sanctity attached to it. It must be followed unless stayed by a higher forum. The proceedings before the Tribunal are not to be initiated for time pass and with no intent to comply with the same, if not convenient. In these circumstances the view taken by the Tribunal does not warrant any interference in exercise of our jurisdiction under Article 226 of the Constitution of India.
10. In these facts, the conduct of the petitioner dis-entitles it to any relief under Article 226 of the Constitution of India.
11. At this stage, Mr. Thakar sought extension of time to deposit 5 of 6 Shridhar Sutar 6 20-wp-1951-18.doc the amount directed by the impugned order of the Tribunal. In view of not having entertained the petition, we see no reason to grant any extension. However, we make it clear that in case the petitioner does deposit the amount as directed by the impugned order of the Tribunal, it would be open to him to approach the Tribunal to extend the time to make the deposit. The Tribunal would consider such an application on its own merits and pass appropriate orders thereon.
12. Accordingly, writ petition is dismissed.
( M. S. SONAK, J. ) ( M. S. SANKLECHA, J. )
Digitally signed
Shridhar by Shridhar
Marutirao Marutirao Sutar
Date: 2018.11.01
Sutar 14:50:06 +0530
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