TaxTMI 
TaxTMI 
2024 (7) TMI 1451
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....(ST) NO. 3239 OF 2024 IN SECOND APPEAL NO. 735 OF 2023 WITH SECOND APPEAL NO. 732 OF 2023 WITH INTERIM APPLICATION NO. 18287 OF 2023 IN SECOND APPEAL NO. 732 OF 2023 Balaji Construction Company Versus Vikram B Shah And Balaji Construction Company Versus Achala Abhijit Patil and Anr. And Balaji Construction Company Versus Prashant Sukhadev Mahajan And Balaji Construction Company Versus Chintan Mahesh Shah And Balaji Construction Company Versus Shashikumar Mishra And Balaji Construction Company Versus Hetal B Shah , Balaji Construction Company Versus Anjusha Ajit Kadam & Ors.And Balaji Construction Company Versus Jayantilal Makwana SANDEEP V. MARNE J. Mr. Gauraj Shah a/w Mr. Keyur Adhvaryu i/b Mr. Yatin R. Shah, for the Appellants in all Second Appeals. Mr. Harshad Bhadbhade a/w Ms. Arya Sapre, for Respondents in SA/731/2023, SA/734/2023, SA/737/2023, SA/736/2023, SA/733/2023, SA/735/2023, SA/732/2023. Mr. Mutahhar Khan a/w Ms. Nehaa Shah i/b Mr. Dhiren H. Shah, for Respondent in SA/727/2023. JUDGMENT :- 1) These Second Appeals filed by the Appellant challenge common Order dated 27 October 2023 passed by Maharashtra Real Estate Appellate Tribunal (Appellate Tribu....
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....filed various Writ Petitions in this Court challenging the Order dated 26 April 2023 complaining that MahaRERA had not quantified the amounts payable under the Order dated 31 October 2022. This Court was therefore informed that the Appellant was unable to pre- deposit the amount under Section 43 (5) of RERA. This Court therefore disposed of the Writ Petitions directing the Appellate Tribunal to quantify the amount to be pre-deposited by the Appellant. The Appellate Tribunal has accordingly passed Order dated 27 October 2023 quantifying the amount of pre-deposit to be made by the Appellant in compliance of proviso to Section 43 (5) of RERA. While doing so, the Appellate Tribunal has also considered and rejected the objection of Appellant that no deposit is required to made in terms of MahaRERA's order. Appellant is aggrieved by the Order dated 27 October 2023 and has filed the present Appeals. 5) This Court has admitted the Appeals by formulating the following substantial questions of law: "i) Whether the Appellants can be directed to deposit the amount of interest as a pre-condition for entertainment of Appeals before the Appellate Tribunal when the liability of the App....
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....nts by Respondents, illegal sales effected by some of the original allotees etc. That Appellant is prevented from arguing the said points on merits by the Appellate Tribunal by unnecessarily insisting on pre-deposit under Proviso to Section 43 (5), when in fact nothing is due and payable to the Respondents. Inviting my attention to regulation 25 (i) of Maharashtra Real Estate Appellate Tribunal Regulations, 2019. Mr. Shah would submit that Appellate Tribunal otherwise has inherent powers to pass appropriate orders in the case, which ought to have been exercised in favour of Appellant considering the facts and circumstances of the present case. 9) Mr. Shah would submit that the Appellant is entitled for adjustment of amounts receivable by it by determining the amount of pre- deposit. That such adjustment is permitted to be made in various other statutes, especially the taxing statutes. In support of his contention, he would rely on the judgment of the Apex Court in M/S. S. E. Graphites Private Limited v. State of Telangana & Ors. Civil Appeal No. 7574 of 2014 decided on 10 July 2019. Relying on the Judgment of the Apex Court in New Tech Promoters and Developers Private Limited Vs....
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....greeable to deposit the entire amount of interest and filed Writ Petition before this Court complaining that it was unable to do so on account of absence of quantification of the amount of interest payable under the Order of MahaRERA. That the Appellant cannot now turn about and question the liability to deposit the interest. Mr. Bhadbhade would pray for dismissal of the Appeals. 12) Mr. Khan, the learned counsel appearing for Respondents in Second Appeal No. 727 of 2023 would also oppose the Appeal adopting the submissions canvased by Mr. Bhadbhade. Additionally, Mr. Khan would submit that Writ Petitions were not filed by Appellants without prejudice to its right to challenge any pre-deposit under proviso to sub Section 5 of Section 43. That the liability to pay interest by Appellant has been crystallized and the amount payable towards such interest has also been crystallized that therefore the Appellant must make a pre-deposit of such interest as a condition precedent for entertainment of Appeals under Proviso to Section 43 (5). That the deferment of payment of interest to the Respondents is in the larger interest of the project and not for the benefit of the Appellant. The Ap....
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....erest and compensation imposed on him' within the meaning of the Proviso has to be the amount which is payable on the date of passing of Order by MahaRERA. That such 'total amount' does not and cannot mean the amount which is payable to the complainant in future. 17) No doubt, the objective behind introduction of Proviso to sub Section 5 of Section 43 is to ensure that the promoter does not engage the flat purchasers in endless litigation without any consequences. The Proviso to Section 43 (5) ensures that the promoter first deposits the entire amount payable under MahaRERA's order in the Appellate Tribunal if he desires to challenge MahaRERA's order. The provision acts as deterrent against promoters and seeks to curb tendency to indulge in unnecessary litigation. The basic idea behind Proviso to Section 43 (5) is that the amount which a promoter is made liable to pay under Regulatory Authority's Order must be deposited in the Appellate Tribunal. 18) In the present case, MahaRERA, while allowing the Complaints filed by Respondents, has passed following Order on 31 October 2022: "17.Considering the above facts and findings as stated, the following Order is passed :- ....
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....s/Orders Nos. 13 and 14 dated 2 April 2020 and 18 May 2020 issued by the MahaRERA and the Notification/Order which may be issued in this regard from time to time." 19) Thus, under Order dated 31 October 2022, the Appellant promoter is directed to pay interest to the Respondents for delayed possession from 1 April 2019 till the date of delivery of possession with occupancy certificate on actual amounts paid by them towards consideration of the premises. In ordinary course the directions to pay interest would come into effect forthwith. However, considering the facts and circumstances of the case where the promoter is not put under financial restraint thereby jeopardizing the entire project, MahaRERA has directed that the entire amount of interest till the date of possession shall either be paid or adjusted against amount receivable from Respondents at the time of delivery of possession. The Promoter is also granted the benefit of moratorium period during Covid-19 pandemic while computing the quantum of interest. Thus, if the promoter was to obey the Order passed by MahaRERA, he becomes entitled to avail both the special benefits of deferment of liability to pay interest till poss....
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....which is a creature of the statute, without a statutory provision, creating such a right the person aggrieved is not entitled to file the appeal. It is neither an absolute right nor an ingredient of natural justice, the principles of which must be followed in all judicial and quasi judicial litigations and it is always be circumscribed with the conditions of grant. At the given time, it is open for the legislature in its wisdom to enact a law that no appeal shall lie or it may lie on fulfillment of pre-condition, if any, against the order passed by the Authority in question. 136. In our considered view, the obligation cast upon the promoter of pre-deposit under Section 43(5) of the Act, being a class in itself, and the promoters who are in receipt of money which is being claimed by the homebuyers/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 fo....
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....pellate Tribunal as a pre-condition for entertainment of its Appeals. 24) Also of relevance in the present case is the conduct exhibited by the Appellant. After the Appellate Tribunal passed Orders dated 2 March 2023, 10 April 2023 and 26 April 2023 dismissing the Appeals for non- compliance with Proviso to Section 43 (5), Appellant approached this Court by filing Writ Petitions complaining that it is unable to make a pre-deposit in absence of quantification of amount by the Appellate Tribunal. In various Writ Petitions filed by Appellant, this Court passed Order dated 4 May 2023 which reads thus: "1. The present writ petitions impugn an order dated 26th April, 2023, by which, the Appeal filed by the Petitioner before the MAHARERA Appellate Tribunal came to be dismissed. Learned counsel for the Petitioner invites my attention to the impugned order and points out that the said Appeals were dismissed since the Appellant had not complied with the order dated 2nd March 2023, by which order, the Appellant was directed to deposit the entire amount as ordered by RERA in compliance with the proviso to Section 43(5) of RERA. 2. Learned counsel then invited my attention ....
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....t of tax for entertainment of Appeal under the provisions of APGST Act 1957. The issue before the Apex Court was about adjustment of amount stated in the tax credit certificate issued in favour of the Appellant. The Apex Court has remanded the proceedings before the High Court for not answering the plea raised by the Appellant therein about adjustment of the amount reflected in tax credit certificate. The judgment of the Apex Court is thus inconclusive as to whether any adjustment was indeed required to be done in the facts of that case and an Order of remand to the High Court is made by the Apex Court. Even otherwise, in case before the Apex Court, the amount reflected in tax credit certificate was already paid and the issue was about its adjustment. In the present case, the liability to pay interest has crystalized and since interest is not actually paid, there is no question of any adjustment. 27) There is yet another angle from which the present case needs to be viewed. The Appellant has filed Appeals before the Appellate Tribunal seeking termination of agreements with Respondents. If the Appellant succeeds in the said relief before the Appellate Tribunal, issue would arise ....