TaxTMI 
TaxTMI 
2022 (3) TMI 1315
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....4 OF 2017 MAT 786 OF 2017, WITH M.A.T. 792 OF 2017 I.A. CAN 1 OF 2017 (OLD NO. C.A.N. 5148 OF 2017) I.A. CAN 2 OF 2017 (OLD NO. C.A.N. 5151 OF 2017) M.A.T. 982 OF 2017 I.A. CAN 1 OF 2017 (OLD NO. C.A.N. 5956 OF 2017) I.A. CAN 2 OF 2017 (OLD NO. C.A.N. 5961 OF 2017) WITH M.A.T. 985 OF 2017 I.A. CAN 1 OF 2017 (OLD NO. C.A.N. 5958 OF 2017) I.A. CAN 2 OF 2017 (OLD NO. C.A.N. 5963 OF 2017), WITH M.A.T. 986 OF 2017 I.A. CAN 1 OF 2017 (OLD NO. C.A.N. 5959 OF 2017) I.A. CAN 2 OF 2017 (OLD NO. C.A.N. 5964 OF 2017) M.A.T. 1370 OF 2017 WITH M.A.T. 1619 OF 2017 I.A. CAN 1 OF 2017 (OLD NO. C.A.N. 9655 OF 2017) WITH M.A.T. 1664 OF 2017 I.A. CAN 1 OF 2018 (OLD NO. C.A.N. 720 OF 2018) M.A.T. 1751 OF 2017 I.A. CAN 1 OF 2017 (OLD NO. C.A.N. 9909 OF 2017) I.A. CAN 2 OF 2017 (OLD NO. C.A.N. 9913 OF 2017) WITH M.A.T. 1752 OF 2017 I.A. CAN 1 OF 2017 (OLD NO. C.A.N. 9912 OF 2017) I.A. CAN 2 OF 2017 (OLD NO. C.A.N. 9914 OF 2017) M.A.T 1782 OF 2017 WITH I.A. CAN 1 OF 2017 (OLD NO. C.A.N. 10240 OF 2017) WITH M.A.T. 1786 OF 2017 M.A.T. 1787 OF 2017 I.A. CAN 1 OF 2019 (OLD NO. C.A.N. 6389 OF 2019) I.A. CAN 2 OF 2019 (OLD NO. C.A.N. 6390 OF 2019) M.A.T. 1801 OF 2017 I.A. CAN 1 OF 2017 (OLD NO. C.A.N. 10106 OF ....
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....ed, DVC Emta Coal Mines Limited, Anindya Ghosh, Precision Engineers & Fabricators Private Limited, Shambhu Prasad Agarwal Paulsons Derma Private Limited, Power Mech. Projects Limited Harsh Polyfabric Private Limited, Dipanjan Mitra & Anr. Island Trading Company Private Limited VERSUS The Senior Joint Commissioner, Sales Tax, Central Audit Unit & Ors. The Joint Commissioner, Commercial Taxes, Burrabazar Circle & Ors. Deputy Commissioner Commercial Taxes, Midnapore Charge & Ors., Sales Tax Officer, Park Street Charge & Ors. Joint Commissioner, Sales Tax, Beadon Street Charge & Ors. Sales Tax Officer Central Audit Unit-I & Ors. State Of West Bengal & Ors. Appearance:- Mr. Boudhayan Bhattacharyya, Mr. Anil Kumar Dubey, Mr. Rajarshi Chatterjee, Ms. Sretapa Sinha........For the Appellants (in MAT 792/2017; MAT 982/2017; MAT 985/2017; MAT 986/2017; MAT 1619/2017; MAT 1751/2017; MAT 1752/2017; MAT 791/2017; MAT 373/2018; MAT 374/2018; & FMA 733 OF 2018) Mr. Anil Dugar Mr. Rajarshi Chatterjee ........For the Appellants (in MAT 783/2017 to MAT 786/2017; MAT 1370/2017; MAT 1664/2017; MAT 896/2017 to MAT 1898/2017; MAT 2072/2017; MAT 652/2018 & MAT 676 OF 2018) Mr. Sandip Choria, M....
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....ection 84 (1) nowhere specifically mentions that the amount has to be returned to the dealer and even Section 62 of the Act which deals with refunds does not specifically mention that the prepayment made in terms of the impugned provision has to be returned. Reference was made to the P. Ramanatha, Advance Law Lexicon to state that the payment is defined to be act of paying or that which is paid; discharge of a debt, obligations or duty; satisfaction of claim; recompense; the fulfillment of a promise or the performance of an agreement; the discharge in money of a sum due. Further it is submitted that the payment has no narrow technical legal meaning restricted to payment of money, as it signifies satisfaction of a claim. With regard to the meaning of the word "deposit", it is submitted that the Advance Law Lexicon explains deposit to mean that there must be a liability to return it to the party by whom it is made, it is not a sum lent but a sum deposited. Relying upon the decision of the Hon'ble Supreme Court in Commissioner of Income Tax. U.P - II Versus Bazpur Co-operative Sugar Factory Limited (1988) 172 ITR 321, it is submitted that it has been clearly held that essence of depos....
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.... and vested right to appeal cannot be taken away and/or prejudicially modified under the facts and circumstances. 2.5. The fourth contention is that the provision is ultravires being hit by the general principles of arbitrariness and unreasonableness as contained under Article 14 of the Constitution of India, as the impugned provision fails to distinguish between the quantum of demands and all dealers are compelled to pay 15 % prepayment in order to file an appeal. Further the impugned proviso does not take into account the different kinds of assessments such an ex-parte assessment, best judgment assessment and assessments where dealer had reasonable opportunity of being heard and therefore the provision is arbitrary and unreasonable. To support such contention, reliance was placed on the decision of the Hon'ble Supreme Court in Shayara Bano Versus Union of India & Ors., (2017) 9 SCC 1. It is further submitted that the Learned Writ Court while dismissing the writ petition placed heavy reliance on the decision of the Hon'ble Supreme Court in State of Madhya Pradesh Versus Rakesh Kohli and Another (2012) 6 SCC 312, and this judgment has been overruled on the same point in "Shayara....
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....in M.P. Steel Corporation Versus Commissioner of Central Excise MANU/SC/0484/2015. It is further submitted that right of appeal accrues on the date of commencement of the lis which commences from the date when return is filed or the date by which return is required to be filed. In support of such contention, reliance was placed on the decision in Khazan Chand Nathi Ram Versus State of Haryana & Others (2004) 136 STC 261 (P & H) and Deputy Commercial Tax Officer, Tribunal Central 1 Assessment Circle, Tirupur and Others Versus Cameo Exports and Others (2006) 147 STC 218 (Mad). Further it is submitted that the impugned proviso is detriment to the interest of the dealer who prefers an appeal against the order of assessment and in such circumstances giving retrospective operation to the impugned proviso will affect, alter and destroy the existing right of the dealer as it creates a new liability or obligation on the dealer to prefer the appeal and in such circumstances the impugned proviso has to be held to be prospective. In support of such contention, reliance was placed on the decision of the Hon'ble Supreme Court in Jayam and Company Versus Assistant Commissioner & Others (2016) ....
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....rtainment of appeal but not empowering the Appellate Authority to give any relief was deprecated and the State Government was advised to forthwith amend the provision to permit waiver or stay by the Appellate Authority of the pre-deposit amount. Therefore, it is submitted that taking clue from the decision in Shyam Kishore and Royal Insulation, the impugned proviso requires to be amended. The Learned Advocate placed reliance on the decision of this Court in Shyam Sel and Power Limited Versus Union of India MANU/WB/1394/2014 (Cal), which is a case which deals with Section 35 F of the Central Excise Act 1944, a provision enabling the appellate authority to dispense with the deposit. It is submitted that in the said decision the Hon'ble Supreme Court has enlisted the circumstances where under it would be necessary to dispense with such requirements. It is further submitted that in the case of Manu Jayanti International RN-1137 of 2016, wherein appeal was filed by the dealer seeking enhancement of the amount refundable, the Appellate Authority mechanically insisted on prepayment of 15 % and fortunately the state agreed that in such a case insisting upon prepayment of 15 % does not aris....
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.... and (b) contained therein. Emphasis is laid on the word "entertained" and what would mean by entertainment of an appeal, Rule 141 of the WBVAT Rules 2005 has to be referred to. Further more in terms of Rule 141, prayer for stay can also be made. References were also made to be Rules 80 and 83 of the 2005 Rules. Reliance was placed on decision of the Hon'ble Supreme Court in State of Madhya Pradesh Versus Rakesh Kohli & Anothers (2012) 6 SCC 312, for the proposition as to what are the principles the Court will have to take into consideration while dealing with constitutional validity of a taxation law. For the same proposition, reliance was placed on the decision of the Hon'ble Supreme Court in Government of Andhra Pradesh and Others Versus P Laxmi Devi (2008) 4 SCC 720. To explain the effect of an amendment to a statute by substitution, reliance was placed on the decision of the Hon'ble Supreme Court in Garikapati Veeraya Versus N Subbiah Choudhury & Others AIR (1957) SC 540. Therefore it is submitted that if an amendment is made by substitution, it shall relate back and to be understood to have been in the same form ever since the inception of the statute. It is further submitted....
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....eal, while granting a right, the legislature can impose conditions for exercise of such a right, so long as the conditions are not onerous or unreasonable rendering the right almost illusory. It is submitted that the amended proviso, provides for producing proof of payment of 15 % of the disputed amount which cannot be said to be unreasonable or onerous. In any, event hardships cannot be a ground to test the constitutional validity of a statutory provision. Further it is submitted that several provisions of the Act and the rules were amended by the Finance Act 2015 and taking into consideration that the amended proviso should not impact the pending appeals, the legislature in its wisdom had fixed the date as 01st day of April, 2015 and the wisdom of the legislature will not be questioned by this court. Reliance was placed on the decision in Harinagar Sugar Mills Limited Versus State of Bihar & Others (2003) 11 SCC 40, and it is submitted that mere filing of the appeal does not absolve the appellant nor suspend their liability to pay the tax assessed during pendency of the appeal and it continues unless paid or set aside and any payment made during that period when liability subsist....
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.... the Learned Government Pleader, it was admitted case of pre-deposit and therefore distinguishable. It is further submitted that the decision in NITDIP Textile Processors cannot be applied to the case on hand as the appellant's case is that there is no qualification at all. On the same ground, the decision in Arun Kumar is also stated to be distinguishable. The Learned Advocate seeks to distinguish the decision in the case of D.V.C. Bukaru Cooperative Stores and Prakrith Builders by contending that those were cases in which the issue was not whether the amount to be paid is a "pre-deposit" or a "payment". Further the Learned Advocate has drawn our attention to the enactments in other states where the powers to relax and waive have been provided. 9. Mr. Khan, Learned Advocate appearing for the appellants, in reply would reiterate his submissions by contending that sufficient safeguard has to be read into Section 14 of the Act. The Learned Advocate also reiterated his submissions by referring to paragraph 44 to 46 of the decision of the Supreme Court in Shyam Kishore. Further it is submitted that the argument of the State that expression "proof of payment" used in Section 84 of th....
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....rom 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 registered dealer stands deferred under Section 116, an appeal shall, notwithstanding that the tax admitted t....
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....ken or purported to have been taken or done under the Principal Act on or after the said date shall, notwithstanding anything contrary contained in the judgment, decree or order of any court, Tribunal or other authority be deemed to be and to have always been for all purposes, as validly and effectively taken or done as if the said amendment had been in force at all material time. 19. Rule 80 of the West Bengal Value Added Tax Rules, 2005 (hereinafter referred to as "the Rules" for brevity) deals with manner of refund in consequence of order of appeal, revision, etc. It states that where any amount payable by a dealer in respect of any period on account of tax assessed, penalty imposed or late fee and interest determined is reduced in consequence of any order passed on reassessment, redetermination, appeal, revision or review, as the case may be, and if it is found that the amount payable is less than the amount paid for such period, including the amount recovered under Section 55, if any, the appropriate assessing authority or the appellate authority or revisional authority shall serve upon such dealer a revised notice in Form 27 or Form 27A or Form 28, as the case may be, spec....
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....cates for the appellants as well as the learned Government Pleader. 28. The following issues arise for consideration in these appeals:- (i) Whether insistence of protection of payment of 15% of the disputed tax as stipulated in the second proviso to Section 84(1) of the Act infringes/abrogates the vested right of appeal under Section 84(1), when such right accrues to a dealer on the date of filing the return; whether it would amount to compulsory extraction of "tax" before the same becomes due and payable? (ii) Whether the second proviso to Section 84(1) infringes Article 14 of the Constitution of India, as it ignores the different categories and assessments and assessees? (iii) Whether the right of appeal conferred under Section 84(1) can be construed as an absolute right prohibiting the said legislature from imposing conditions for entertaining such an appeal? (iv) What is the effect of substitution of second proviso to Section 84(1) of the West Bengal Finance Act, 2015? (v) Whether the principles of "reading down" be applied while interpreting the second proviso to Section 84(1) and (vi) Whether alleged hardship of a deale....
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.... and enforcement of that right of appeal and amended proviso cannot prevent exercising such a right. 33. The Hon'ble Supreme Court in the said decision was testing the correctness to the amended proviso to sub-section (1) of Section 22 of the Central Provinces and Berar Sales Tax Act, 1947 and it was held that the amended proviso was prospective and the old law which continued to exist would apply and that the appeal should not have been rejected on the ground that it was not accompanied by satisfactory proof of payment of the assessed tax as in the said case, the appellant did not admit that any amount was due by it and therefore, it was held that under the section as it stood previously (before amendment) the appellant therein was entitled to file its appeal without depositing any sum of money. To the same effect, reliance was placed on the decision of the Division Bench of the High Court of Madras in Deputy Commercial Tax Officer, Tirupur Versus Cameo Exports (2006) 147 STC 218 (Mad). 34. By referring to the above decisions, it is contended by the learned Advocates for the appellants an amendment to a provision dealing with a right of appeal can only be prospective, it....
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....he right of appeal provided under Section 84(1). Thus, we are to consider as to the distinction between a substantive law and the procedural law. 40. In Hitendra Vishnu Thakur Versus State of Maharashtra (1994) 4 SCC 602, the Hon'ble Supreme Court, while considering what are substantive and procedural laws, had laid down the scope of amending Act which was given retrospective effect. It was held that a statute which affects substantive rights is presumed to be prospective in operation unless made retrospective either expressly or by necessary intendment. A statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits. It was further held that law relating to forum and limitation is procedural in nature whereas law relating to right of action and right of appeal even though remedial, is substantive in nature. Every litigant has a vested right in substantive law, but no such right exists in procedural law. It was further held that a procedural statute should not generally speaking be applied retr....
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..... The first of which being producing proof of payment of the full amount of tax, interest, penalty or late fee as the aggrieved dealer may admit to be due from him. Clause (b) requires the aggrieved dealer to produce proof of payment of 15% of the amount of tax in dispute in such appeal. The third proviso provides for the contingency when an appeal can be entertained, when the tax admitted to be due from a dealer has not been paid and the same stands deferred under Section 116 of the Act. Therefore, if the provisos to Section 84(1) are read together, will clearly demonstrate that the provisos enumerate the procedure to be followed by an aggrieved dealer while exercising his substantive right of appeal under Section 84(1) of the Act. In other words, if the right of appeal as provided under Section 84(1) could be entertained upon compliance of certain conditions by the aggrieved dealer at the time of preferring an appeal, which would be a provision in the realm of procedural law. It can be further clarified by observing that Section 84(1) of the Act provides for the authority before whom the appeal can be preferred and the circumstances under which the dealer could exercise such righ....
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....Ltd. (Supra), which were rejected holding thus: "But prior to that, it would be necessary to understand the scope of a proviso vis-vis the main provision in a section in the context of the decisions of the Hon'ble Supreme Court and in light of the principles of interpretation of proviso. a) The normal function of a proviso is to except something out the enactment or to qualify something enacted therein which, but for the proviso, would be within the purview of the enactment. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. In other words, a proviso qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment. Further, a proviso cannot be construed as nullifying the enactment or as taking away completely a right conferred by the enactment. b) In this regard, learned Author, Justice G.P. Singh has, in "Principles of statutory Interpretation", enunciated certain rules collated from judi....
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....rovide it specially. d) At this stage, this construction or interpretation of a proviso could be considered:- a) In Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai [MANU/SC/0328/1965: AIR 1966 SC 459], while dealing with the Bombay Tenancy and Agricultural Lands Act, 1948, the Hon'ble Supreme Court held, that a proper function of a proviso is to except or qualify something enacted in the substantive clause, which but for the proviso, would be within that clause. b) In Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories [MANU/SC/0194/1964 : AIR 1965 SC 980], while considering proviso to Section 6 of Trade Marks Act, 1940, it was observed that it would not be a reasonable construction for any statute, if a proviso which in terms purports to create an exception and seeks to confer certain special rights on a particular class of cases included in it should be held to be otiose and to have achieved nothing. c) In Kedarnath Jute Manufacturing Co. Ltd., v. the Commercial Tax Officer and Others [MANU/SC/0290/1965 : AIR 1966 SC 12], it was observed that "the effect of an excepting or qualifying proviso, according to the ordinary r....
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....to the enactment with the sole object of explaining the real intendment of the statutory provision. f) The approach to the construction and interpretation of a proviso are enunciated in the following cases:- a) In M. Pentiah & others v. Muddala Veeramallapa & others (MANU/SC/0263/1960 : AIR 1961 SC 1107), it was observed that while interpreting a section or a proviso, as in the instant case, if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. b) In Superintendent & Remembrancer of Legal Affairs to Govt. of West Bengal v. Abani Maity (MANU/SC/0525/1979 : AIR 1979 SC 1029), the Apex Court observed that the statute is not to be interpreted merely from the lexicographer's angle. The Court must give effect to the will and inbuilt policy of the Legislature as discernible from the object and scheme of the enactment and the language employed therein. Th....
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....ng to an assessment of tax unless the tax had been paid and such condition merely regulating the exercise of right of an appeal was that the same is not to be abused by a recalcitrant party and there is no difficulty in the enforcement of the order appealed against in case the appeal is ultimately dismissed. It was further held that it was open to the legislature to impose an accompanying liability upon a party upon whom a legal right is conferred or to prescribe conditions for the exercise of the right. Any requirement for the discharge of that liability or the fulfilment of that condition in case the party concerned seeks to avail of the said right is a valid piece of legislation. 48. In Seth Nand Law Versus State of Haryana (1980) Supplementary SCC 574, the Constitution Bench of the Hon'ble Supreme Court held that right of an appeal is a creature of a statute and there is no reason why the legislature while granting the right cannot impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory. In the said decision, the Hon'ble Supreme Court held that the cond....
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....o words viz., "payment" and "deposit" in isolation. Therefore, the reference to the meaning of these words as spelt out in the Law Lexicon cannot in any manner advance the case of the appellants. 53. The decision in the case of Bazpur Sugar Factory was pressed into service to explain as to what would be meant by deposit, which has essence of a deposit is that there must be a liability to return it to the party by whom or on whose behalf it is made on the fulfilment of certain conditions. Firstly, the decision in the said case arose out of a proceedings under the Indian Cooperative Societies Act, 1921 and the question framed for determination was whether on the facts and circumstances, the Income Tax Appellate Tribunal was right in holding that the amount of Rs. 5,15,863/- was not a revenue receipt liable to tax. Thus, considering the facts of the case of the assessee therein, with regard to the monies described as security deposit which was returned by the assessee as and when the empty bottles were returned, the Court went into the aspect as to whether the said amount as claimed by the dealer should be treated as a deposit for ascertaining as to whether they are liable to pay i....
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....56. Thus, as pointed out earlier in Hoosein Kasam Dada the validity of Section 22(1) of the Central Provinces and Berar Sales Tax Act, 1947 was challenged in which there was no date mentioned, as to which of those appeals will be entertained unless the amount of tax and penalty admitted by the assessee has been paid, whereas in the second proviso to Section 84(1), the date has been clearly mentioned as appeals to be submitted on or after the 1st day of April, 2015 such procedure is required to be adopted, making it clear that the second proviso will not affect pending appeals. 57. In fact in Hoosein Kasam Dada, the Hon'ble Supreme Court held that though the right of appeal is a substantive right/vested right, such right cannot be taken away, except by express enactment or necessary intendment. Even assuming for arguments sake, the second proviso to Section 84(1) is to be treated as a substantive provision, such right is not an absolute right and could be taken away or subject to conditions, if there is an express enactment or necessary intendment. The second proviso clearly shows the necessary intendment and therefore, even assuming it is treated to be a vested right, the sa....
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....a statute is clear more particularly a fiscal statute, the concept of reading down would be alien especially in the facts and circumstances of the cases before us. We also note that similar provision under the Karnataka Sales Tax Act, 1957 was upheld in Prakrith Builders Pvt. Ltd. Versus State of Karnataka (2009) 19 VST 589. Similar provision in Section 77(4) of the Orissa Value Added Tax Tax, 2004 was upheld in Jindal Stainless Steel Versus State of Orissa (2012) 54 VST 1. 61. In the light of the above discussions, we hold that the second proviso to Section 84(1) of the Act is the procedure prescribed for preferring an appeal under Section 84(1) of the Act by an aggrieved dealer and condition imposed therein is not a compulsory extraction of tax and the State legislature was well within its jurisdiction to impose conditions for preferring appeals and on account of such condition being imposed, it neither infringes nor abrogates the statutory right of appeal granted to an aggrieved dealer under Section 84(1) of the Act and insistence upon producing of proof of payment of 15% of the tax in dispute cannot be regarded as compulsory extraction of tax, as the assessment has been comp....
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....ination, whether a person or class of persons have been singled out from others similarly situated. It is equally important to note that Article 14 does not prohibit classification as long as classification is based on legal and relevant circumstances. 64. Firstly, we need to consider as to whether the argument of the learned Advocates for the appellants stating that different types of assessments and different types of dealers have been treated alike. The argument deserves to be outrightly rejected for the simple reason that whatever may be the type of assessment, such as a best judgment assessment, an assessment after opportunity to the dealer etc., is an assessment under the provisions of the Act. Similarly, an assessee can be of different categories and a casual dealer can also be brought within the provisions of the Act. Therefore, the appellants' attempt to show discrimination is an attempt, which has to necessarily fail. 65. Section 84(1) of the Act is a provision, which provides for right of appeal to an aggrieved dealer. The substantive provision does not categories the types of assessment or types of assessees and it provides for a right of appeal to any casual ....
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.... any distinction as regards the varied categories of dealers/ assessees or assessments. On a plain reading of Section 84(1), it shows that there is no distinction among the categories of dealers or the types of assessments. The provision deals with appeal against provisional or other assessments. Other assessments would include all categories of assessments as were enumerated by the learned Advocates for the appellant. Thus, in the absence of any classification or sub-classification of the category of dealers or types of assessments, the provision cannot be stated to be discriminatory. Furthermore, the provision states that any casual dealer or dealer may in the prescribed manner appeal to the authority specified therein. The term "dealer" has been defined under Act and undoubtedly, all the appellants before us will fall within the said definition. Assuming one of them is a casual dealer, he also stands covered by Section 84(1). The provision further takes note of the fact that a dealer may be aggrieved by an order of provisional assessment and, therefore, the legislature in its wisdom has granted appellate remedy even against provisional assessments. More importantly, Section 84 u....
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....but only cannot be heard or disposed of without pre-deposit of the disputed tax. 71. In our considered view, the decision in Shyam Kishore cannot be applied to the facts and circumstances of the cases on hand. As noted earlier, Section 84(1) of the Act is the substantive right of the assessee to file an appeal. The manner, in which the appeal will be entertained, is stipulated in the proviso under Section 84(1) of the Act. There is marked difference between the words and phrases used in the Delhi Municipal Corporation Act and that of the WBVAT. Hence, the decision cannot be applied to the facts of this case. Equally this Court cannot enact a law and the duty of the Court is to interpret the law and as we find there is nothing arbitrary or unreasonable about the provisos to Section 84(1) the question of making a recommendation to the legislature for amending the Act does not arise. Equally the decision in the case of Royal Insulation wherein there was direction to the State Government to issue an ordinance amending Section 31 of the Tamil Nadu General Sales Tax Act, 1959 cannot be applied to the facts and circumstances of the case on hand. Reliance was placed on the decision of t....
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....antum of tax but disputes the computation done by the revenue with regard to entitlement for refund. However, we find such orders were reversed by the Tribunal, and rightly so. In any event, these stray instances cannot be taken as an anvil to test the vires of a statute. 74. Reliance was placed on the decision in M.P. Steel Corporation to buttress the submission that the substantive right of filing an appeal cannot be taken away by virtue of the second proviso. This argument was further expanded by placing reliance on the decision of Khazan Chand Nathi Ram and the decision in Cameo Exports. In the earlier part of this judgment, we have conclusively held that the second proviso to Section 84(1) being a procedural law does not in any manner impinge on the substantive right of appeal conferred by the aggrieved dealer under Section 84(1) of the Act. Therefore, the decision does not render support to the case of the appellant assessees. It was contended that the condition imposed in the second proviso is altogether a new provision, and it cannot have retrospective effect. To support such contention, reliance was placed on the decision in Jayam and Company. In the said decision th....
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....xtreme hardship writ petition could be an appropriate remedy. This issue does not arise for consideration in the cases on hand as we are to decide the validity of the impugned provision. In any event, if a dealer is of the view that he is entitled to move the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India without filing an appeal before the Appellate Authority, it is for such dealer to convince the Court as to why he is justified in not availing the alternate remedy and as to why he has approached the High Court under Article 226 of the Constitution. It is for the Court to then take a decision as to whether the writ petition would be an appropriate remedy though there exists a statutory appellate remedy. 76. It was contended that the learned Writ Court while dismissing the writ petitions had placed heavy reliance on the decision in Rakesh Kohli, which decision has been overruled in Shayara Bano. It was held that in the decisions in Rakesh Kohli and other decisions, were read as being an absolute bar to use of "arbitrariness" as a tool to strike down legislation under Article 14 and the decisions were arrived at following the decision in T....
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.... promoters, obligations of promoters, adherence to sanctioned plans, insurance of real estate, payment of penalty, interest and compensation, etc. under Chapters III and VII of the Act 2016. This classification between the rights, duties and obligations cast upon the allotees/home buyers and the promoters and is in furtherance of the object and purpose of the Act to protect the interest of the consumers vis-a-viz, the promoters in the real estate sector. The promoters and allotees are distinctly identifiable, separate class of persons having been differently and separately dealt with under the various provisions of the Act. Therefore, the question of discrimination in the first place does not arise which has been alleged as they fall under distinct and different categories/ classes. The legislature in its wisdom has intended to ensure that the money which has been computed by the authority at least must be safeguarded if the promoter intends to prefer an appeal before the tribunal and in case, the appeal fails at a late stage, it becomes difficult for the consumer/ allottee to get the amount recovered which has been determined by the authority and to avoid the con....
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....the promoters who are in receipt of money which is being claimed by the home buyers/ allottees for refund and determined in the first place by the competent authority, if legislature in its wisdom intended to ensure that money once determined by the authority be saved if appeal is to be preferred at the instance of the promoter after due compliance of pre-deposit as envisaged under Section 43(5) of the Act, in no circumstance can be said to be onerous as prayed for or in violation of Articles 14 or 19(1)(g) of the Constitution of India. 83. The upshot of the discussion is that:- 1. Insisting the dealer to produce the proof of payment of 15% of the disputed tax in terms of the second proviso to Section 84(1) does not infringe/ abrogate the vested right of appeal under Section 84(1) of the Act and such proviso does not amount to compulsory extraction of tax as it is a procedural law, prescribing a procedure for the purpose of entertaining an appeal. 2. The second proviso to Section 84(1) of the Act does not infringe Article 14 of the Constitution as the substantive law namely, Section 84(1) of the Act does not provide for any categories of dealers or categories o....