2015 (11) TMI 1147 - HC - VAT and Sales Tax

Petitioner Ordered to Provide Bank Guarantee in VAT Appeal

The court directed the petitioner to furnish a Bank Guarantee of Rs. 80 lakhs in a VAT Appeal challenging the interim order under the Maharashtra Value ... Levy of tax under MVAT Act - Petitioner engaged in providing network connectivity services to its closed group of customers - Held that:- The first appellate authority would have to decide as to whether the Petitioner could be subjected to the levy under the MVAT Act. In other words, the applicability of the Act to the business of the Petitioner would have to be determined first. If the Petitioner contends there is absolutely no transfer of any goods or even any right to use the goods during the course of rendering of the services, then, that argument will have to be considered seriously and dealt with. That would have to be dealt with in the backdrop of the scheme of the Act and the object and purpose sought to be achieved by it. - imposition of a condition of pre-deposit would denote as to how the authorities have prima facie prejudged the issue raised for their consideration. If there is an arguable point and a strong prima facie case, then, other aspects come into play and namely how the rights and equities have to be balanced. They could have been balanced in the given circumstances by not imposing a condition of cash deposit but to provide security and to the satisfaction of the authority. That would ensure, in the event the Petitioner is held liable to pay the tax that, that amount can be recovered by adjusting the security and also by initiating every means of payment. At least some amount then is available for recovery. - Petitioner will furnish a bank guarantee - Petition disposed of. Issues:Challenge to interim order in VAT Appeal, interpretation of MVAT Act, applicability of tax levy, pre-deposit conditions in stay application.Interpretation of MVAT Act:The petitioner challenged an order directing a deposit of Rs. 77,50,000 under the Maharashtra Value Added Tax Act, 2002. The petitioner claimed to provide network connectivity services to a closed group of customers without any taxable sale or purchase during the disputed period of 2006-07. The petitioner argued that as long as no dealing in goods or transfer of rights was involved, the taxing provisions wouldn't apply. The petitioner emphasized that the Act's charging provisions would only apply if goods were dealt with during service provision. The court noted the petitioner's contentions and highlighted the need for a thorough examination of whether any transfer of goods occurred during service provision.Pre-deposit Conditions in Stay Application:The court emphasized the importance of balancing rights and equities when imposing pre-deposit conditions. It criticized the authorities for prejudging the issue by imposing a cash deposit condition, which could hinder the petitioner's right to appeal. The court highlighted the need for reasonableness in conditions imposed during appeals, ensuring that security could be provided instead of a cash deposit to facilitate potential tax recovery if the petitioner was found liable.Disposition and Bank Guarantee Requirement:The court disposed of the stay application by directing the petitioner to furnish a Bank Guarantee of Rs. 80 lakhs to the satisfaction of the first appellate authority. The Bank Guarantee was to be kept active during proceedings, and compliance would lead to an expeditious hearing and decision on the appeal. The petitioner agreed to cooperate in the proceedings and was required to appear before the first appellate authority by a specified date. The Bank Guarantee was not to be encashed for a specific period after an adverse order.In conclusion, the court made the rule absolute in the specified terms without imposing any costs. The judgment highlighted the importance of fair treatment in imposing conditions during appeals and emphasized the need for a thorough examination of the applicability of tax provisions under the MVAT Act.