TaxTMI 
TaxTMI 
2022 (2) TMI 1223
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....e assessment year 2011-2012, levying tax under the Maharashtra Value Added Tax Act, 2002 (hereafter "the MVAT Act") on payments of royalty made by the subsidiary companies to the petitioner on the allegation that such royalty amounts to consideration for transfer of right to use of trademarks and technical know-how. It is evident from the impugned order that it was preceded by a show-cause notice, whereupon the petitioner duly submitted its response disputing its liability and was thereafter afforded an opportunity of hearing. Ultimately, the respondent no.3 held the subject transaction to be a sale transaction which is taxable under the MVAT Act, relying upon a judgment passed by the Maharashtra Sales Tax Tribunal, constituted under section 11 of the MVAT Act, in the case of M/s. Merk KGaA, Germany Vs. The State of Maharashtra. The penultimate paragraph in the impugned order captures the liability and reads as under: - "Gross turnover of sales and net sales is determined at Rs.38168775/-. MVAT is levied @ 5 per cent being the goods covered by Sch C-39 of MVAT Act 2002. MVAT payable comes at Rs.1908439. Interest under section 30 (1) is levied at Rs.1908439. Total Dues payable by ....
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....relying on the decision of the Tribunal in the case of M/s. Merk KGaA (supra), exploring the remedy of first appeal provided by section 26(1) of the MVAT Act to the Joint Commissioner, being the first appellate authority, would be a mere ritual inasmuch as the Joint Commissioner being bound by the aforesaid decision of the Tribunal, confirmation of the order of the Deputy Commissioner is a foregone conclusion. 6. Our attention has been invited by Mr. Sridharan to the decisions of the Supreme Court reported in (1980) 4 SCC 451 [M/s. Anand Swarup Mahesh Kumar Vs. Commissioner of Sales Tax] and (1985) 4 SCC 404 [M/s Onkarlal Nandlal Vs. State of Rajasthan and Another], where the Supreme Court entertained special leave petitions filed under Article 136 of the Constitution of India directly from orders passed by the taxing authorities, without the party aggrieved approaching the relevant high courts on the ground that the point in issue had been decided by such high courts. The decision in (2009) 8 SCC 209 [Assistant Commissioner (CT) LTU Vs. Amara Raja Batteries Ltd.] was also placed before us where the Supreme Court upheld the decision of the relevant high court on writ petitions fil....
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....stitutional point of grave importance having been raised in the writ petition with regard to the jurisdiction of the State of Maharashtra to levy tax in the light of Article 286 of the Constitution, the present writ petition is not one calling for a dismissal in limine on the ground that the petitioner ought to avail the statutory remedy first. 9. Responding to the twin reasons indicated in our order dated 14th February, 2022, Mr. Sridharan spared no effort to distinguish the decisions in A.V. Venkateswaran, Collector of Customs, Bombay (supra) and Thansingh Nathmal (supra). We propose to deal with this part of his address a little later. 10. In conclusion, Mr. Sridharan submits that the rule of exhaustion of alternative remedy is a rule of convenience and discretion rather than a rule of law. Since it does not oust the jurisdiction of the high court exercising writ jurisdiction and having regard to the peculiar facts of this case, this Court may exercise discretion and entertain the writ petition, particularly when other writ petitions have been entertained and are pending. 11. Learned counsel for the respondents are not called upon to answer the contentions of Mr. Sridharan, f....
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....enkateswaran, Collector of Customs, Bombay (supra) ought to be applied to turn the petitioner off at the threshold. We, thus, accept the argument of Mr. Sridharan and hold that the writ petition does not suffer from such delay and/or laches so as to warrant a dismissal on the ground of its institution after expiry of the period of limitation to approach the first appellate authority. 16. Mr. Sridharan sought to distinguish Thansingh Nathmal (supra) by contending that the Supreme Court was seized of a case, where the party aggrieved despite having an opportunity to seek a reference against the order of the Commissioner had approached the relevant high court directly to re-open the decision of the taxing authorities on questions of fact (emphasis supplied by Mr. Sridharan). According to him, the law laid down in paragraph 7 of the decision must be read bearing this feature in mind that disputed questions of fact were sought to be raised. 17. Mr. Sridharan is again right, but only partially. Notwithstanding that questions of fact emerged for decision in Thansingh Nathmal (supra), the Supreme Court had the occasion to lay down therein a principle of law which is salutary and not to b....
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.... MVAT Act, provided a hierarchy of authorities who could be approached for redress. Instead of pursuing the remedy thereunder, the writ jurisdiction of the Orissa High Court was invoked challenging orders of assessment. The law laid down therein is in the following terms: "6. We are constrained to dismiss these petitions on the short ground that the petitioners have an equally efficacious alternative remedy by way of an appeal to the Prescribed Authority under sub-section (1) of Section 23 of the Act, then a second appeal to the Tribunal under subsection (3)(a) thereof, and thereafter in the event the petitioners get no relief, to have the case stated to the High Court under Section 24 of the Act. ... " *** "11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under sub-section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of Section 23 of the Act, and then ask ....
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.... rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar, and that one different or additional fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts. 22. We do not find any law having been declared in the aforesaid three decisions that whenever a situation of like nature arises, i.e., a dispute having been decided either by a high court or by a tribunal/appellate authority taking a particular view of the matter and such decision is binding on the lower authority in the hierarchy, in cases which are similar in nature, the writ jurisdiction of the high court or the jurisdiction of the Supreme Court under Article 136 of the Constitution could be invoked by the aggrieved party straightaway without exhausting the procedure of redressal of grievances provided by the statute and such jurisdiction must invariably be exercised. The courts have not laid down such a proposition of law for reasons, which need not fall for discussion here; suffice it to note, in all the ci....
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....acceptance, this could form the primary ground for setting aside the impugned order. Since the order of the Tribunal in the case of M/s. Merk KGaA (supra) is prior in point of time to the decision in Mahyco Monsanto Biotech (India) Pvt. Ltd. (supra) and if at all the latter decision has any application in the facts and circumstances of the case, it would always be open to the petitioner to persuade the Tribunal to reverse its view. It goes without saying that the first appellate authority or the second appellate authority (the Tribunal), being bound by the dicta of this Court has to ignore the decision given by the Tribunal earlier in the case of M/s. Merk KGaA (supra) if a view has been expressed therein which is inconsistent with that expressed by this Court in Mahyco Monsanto Biotech (India) Pvt. Ltd. (supra). We are, thus, not ad idem with Mr. Sridharan that the appellate remedy available under the MVAT Act is not an effective remedy or that the petitioner may not be asked to complete a ritual before approaching this Court under section 27 of the MVAT Act. 25. We are left to consider the decision in S.R. Sarkar (supra), more particularly paragraph 5 thereof which has been refe....