M/S. Rajendra Mechanicals Industries Ltd. Vs the Maharashtra Sales Tax Tribunal and Ors.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 ORDINARYORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO.2150 OF 2005

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 M/s.Rajendra Mechanical Industries )
 Ltd., an existing company within the )
 meaning of Companies Act, 1956, having )
 its registered office at Plot No.11, )
 Cama Industrial Estate, Goregaon (E), )
 Mumbai - 400 063. )..Petitioner.

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 V/s.

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 1. The Maharashtra Sales Tax )
 Tribunal, 7th Floor, Vikrikar )
 Bhavan, Mazgaon, Mumbai - 400 010. )
 )
 2. The State of Maharashtra, )
 Mantralay, Mumbai - 400 032. )
 )
 3) The Commissioner of Sales Tax, )
 Maharashtra State, 8th Floor, )
 Vikrikar Bhavan, Mazgaon, )
 Mumbai - 400 010. )..Respondents.

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 Mr.C.B.Thakkar for petitioners.

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 Mr.Rajiv Chavan, A.G.P. for respondents.

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CORAM : V.C.DAGA AND
J.P.DEVADHAR, JJ.

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DATED : 9TH SEPTEMBER, 2005.

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JUDGMENT (PER V.C.DAGA, J.)

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 1. Rule, returnable forthwith. Mr.Rajiv Chavan,
 AGP waives service on behalf of the respondents. Heard
 finally by consent of the parties.

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THE FACTS

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 2. Petitioners had filed first appeal before the

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 Dy.Commissioner of Sales Tax (Appeals) II, Mumbai
 against the order of assessment dated 11/11/1996 passed
 by the Assistant Commissioner of Sales Tax (Asstt)
 B-108 under the provisions of the Central Sales Tax
 Act, 1956. The petitioner was unsuccessful in the said
 appeal. Consequently, petitioner preferred second
 appeal against the above order before the Maharashtra
 Sales Tax Tribunal, Mumbai (‘the Tribunal’ for short).

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 3. During the pendency of the aforesaid appeal,

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 the Government of Maharashtra issued a Government
 Resolution dated 26/4/1999 declared Amnesty Scheme
 known as "Maharashtra Rajya Karvivad Nivaran Yojana,
 1999" (‘MKNY Amnesty Scheme’ for short).

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 4. The Commissioner of Sales Tax pursuant to
 clause 5 of the MKNY Amnesty Scheme issued Trade
 Circular No.12T of 1999 dated 10/5/1999 along with
 Circular bearing No.14-T of 1999 dated 10/6/1999.
 Clause (x) of the Circular dated 10/6/1999 reads as
 under :-

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 "(x) Cases pending in Appeal.

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 (a) Xerox copy of the letter addressed to
 Appellate Authority for withdrawal of the
 appeal unconditionally shall be enclosed with
 the application form.

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 (b) For availing benefit under MKNY if the appeal
 is withdrawn and subsequently for any reason
 the benefit under MKNY is not granted, the
 dealer can apply for restoration of appeal.

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 5. Petitioner to claim the benefit of MKNY Amnesty
 Scheme, on 26/7/1999; applied to the Maharashtra State
 Tribunal for withdrawal of the second appeal pending
 before the Tribunal and on 31/7/1999 applied for
 availing benefits of the Amnesty Scheme. During the
 pendency of this application moved on 31/7/1999 the
 Sales Tax Tribunal by an order passed in the second
 appeal allowed the petitioner to withdraw its appeal.
 Thus, the second appeal came to be dismissed as
 withdrawn. The petitioner thereafter entered into the
 correspondence with authorities designated under MKNY
 Scheme for allowing the benefits of the Amnesty Scheme
 and pursued the matter right upto July 2003. However,
 the petitioner could not get success in claiming
 benefits of the MKNY Amnesty Scheme. In other words,
 application made by the petitioner came to be rejected
 and the benefits of the Scheme were denied to the

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 petitioner, which the petitioner came to know finally
 in the month of July, 2003.

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 6. Petitioner after having known finally that he
 was not going to get the benefits of MKNY Amnesty
 Scheme applied on 5/9/2003 for restoration of the
 second appeal to the Sales Tax Tribunal. The Tribunal
 finding the application for restoration beyond the
 period of 30 days from the date of the order allowing
 withdrawal of the appeal, rejected the application for
 restoration vide its order dated 21/4/2005. The
 aforesaid order is the subject matter of the challenge
 in this petition filed under Article 226 of the
 Constitution of India.

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RIVAL SUBMISSIONS

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 7. The learned counsel appearing for the petitioner
 submits that in order to have proper implementation of
 the MKNY Amnesty Scheme Trade Circulars were issued
 from time to time in exercise of powers conferred under
 the said Amnesty Scheme. One of the clauses of the
 Trade Circular as extracted hereinabove, specifically
 permits the applicant to apply for restoration of the
 appeal in the event benefits of the Scheme are denied
 to him. In that view of the matter, the learned

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 counsel for the petitioner submits that the the State /

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 Sales Tax department ought not to have opposed its
 application for restoration of appeal. In the
 submissions of the learned counsel for petitioner, the
 contentions raised by the State Government while
 opposing the prayer for restoration of the appeal were
 contrary to the declared policy of the State. He thus,
 submits that so far as Rule 61 of the Bombay Sales Tax
 Rule, 1959 is concerned, the said Rule could not have
 been pressed into service to defeat the prayer of the
 petitioner seeking to restore appeal which was
 withdrawn to seek benefits of the Amnesty Scheme. He
 further submits that appeal was never dismissed by
 Tribunal in default nor it was decided ex-parte, as
 such Rule 61 has no application. He further submits
 that the prayer for restoration of appeal was pursuant
 to the Amnesty Scheme floated by the State Government,
 wherein no specific time limit was prescribed,
 therefore, Court should only examine whether the prayer
 for restoration was made within a reasonable time or
 not. He, thus, submits that the impugned order of the
 Tribunal refusing to restore appeal to its file is
 liable to be set aside.

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 8. Per contra, learned A.G.P. appearing for the
 State (Sales Tax department) while countering the

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 aforesaid submissions urged that Trade Circulars issued

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 from time to time pursuant to the powers given in the
 Scheme will have to be read with the Rules of 1959 in
 general and Rule 61 in particular in the facts and
 circumstances of the case. He, thus, submits that the
 application for restoration of the appeal not being
 made within a period of 30 days, the Tribunal was
 perfectly justified in rejecting the application for
 restoration. He thus prayed for rejection of this
 petition.

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CONSIDERATION

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 9. Having heard the rival parties, without going
 into the intricacies of the legal submissions advanced,
 it is needless to mention that pursuant to the MKNY
 Amnesty Scheme, the present petitioner had withdrawn
 the appeal. The benefits of the scheme could not be
 extended to the petitioner with the result the
 petitioner was justified in moving an application for
 restoration of the appeal which was allowed to be
 withdrawn by the Tribunal. The Trade Circular issued
 did not provide for any time limit for moving the
 restoration application to restore the appeal.
 Limitation of 30 days prescribed under Rule 61 of the
 Bombay Sales Tax Rules, 1959 apply to cases where the
 appeal is dismissed or decided ex-parte on account of

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 the failure on the part of the appellant to appeal
 before the Tribunal on the appointed date and not cases
 where the appeal is allowed to be withdrawn for
 availing the benefit of the Amnesty Scheme. Under
 these circumstances, considering the MKNY Amnesty
 Scheme and the Trade Circulars issued thereunder, we do
 not think that the Tribunal was justified in relying
 upon the Rule to non suit the petitioner.

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 10. Even otherwise, considering the interest of
 justice, the prayer of the petitioner for restoration
 ought to have been allowed by the Tribunal. A dealer
 or a person like the petitioner cannot be told that
 under the Amnesty Scheme he will have to withdraw the
 appeal and on refusal to grant benefits, he will not be
 entitled to pursue his appeal. Assessee cannot be hit
 in both ways. In this view of the matter, we are of
 the opinion that the impugned order is unsustainable
 and liable to be quashed and set aside. The
 application for restoration which was filed by the
 petitioner before Tribunal is liable to be allowed.
 Appeal is liable to be restored to the file of the
 Tribunal with directions to decide it on its own
 merits.

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 11. In the result, the petition is allowed. The

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 impugned order dated 21/4/2005 incorporated at
 Exhibit-L of the petition is set aside. Rule is made
 absolute in terms of prayer clause (a) with no order as

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 to costs.

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(V.C. DAGA,J.)

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 (J.P. DEVADHAR, J.)

M/S. Rajendra Mechanicals Industries Ltd. v. the Maharashtra Sales Tax Tribunal and Ors.

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M/S. Rajendra Mechanicals Industries Ltd. v. the Maharashtra Sales Tax Tribunal and Ors.

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