M/s Manmath Nath Kundu and Sons Vs Deputy Commissioner Of Commercial Tax Anors

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR WPT No. 53 of 2013

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M/s Manmath Nath Kundu & Sons a registered partnership firm through Partner Subrath Kundu, S/o Lt Shri Manmath Nath Kundu, age about 56 years, R/o C/o Samir Choudhury Kumaharpara Maitri Sangh Gali Jagdalpur, Police Station Bodhghat, Jagdalpur (C.G.)

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----Petitioner

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Versus

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1. Deputy Commissioner Of Commercial Tax Range -2, Raipur Vanijyik Kar Bhavan Civil Lines Raipur, PS Civil Lines, Raipur, Chhattisgarh

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2. State of Chhattisgarh through Secretary Department of Commercial Tax Mantralaya Bhavan Naya Raipur (C.G.), Police Station Civil Lines Raipur (C.G.)

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---- Respondents

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WPT No. 54 of 2013

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M/s Manmath Nath Kundu & Sons A Registered Partnership Firm, Through Partner Subrath Kundu, S/o Lt Shri Manmath Nath Kundu, aged about 56 years, R/o C/o Samir Choudhury Kumaharpara Maitri Sangh Gali Jagdalpur, PS Bodhghat, Jagdalpur (C.G.)

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---- Petitioner

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Versus

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1. Deputy Commissioner Of Commercial Tax Range 2, Raipur, Vanijyik Kar Bhawan, Civil Lines, Raipur, PS Civil Lines, Raipur (C.G.)

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2. State of Chhattisgarh through Secretary Department of commercial Tax Mantralaya Bhavan Naya Raipur (C.G.), PS Civil Lines Raipur (C.G.)

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---- Respondents

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CAUSE TITLE DOWNLOADED FROM CIS PERIPHERY

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-------------------------------------------	---------------------------------------------------------------
For Petitioner	: Mr. Pravin Tulsyan & Mr. Siddharth
	Dubey, Advocates
For State/Respondents -----------------------------------------------	: Mr. Gary Mukhopadhyay, GA --------------------------------------------------------------------

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Hon'ble Shri Justice Sachin Singh Rajput

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Order On Board

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20.06.2024

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WPT No. 53 of 2013

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1. This Writ Petition has been filed challenging the order dated 28.12.2012 passed by the Divisional Deputy Commissioner of Commercial Tax, Division No.2, Raipur by which the petitioner was directed to pay Rs.22,17,199/- as total amount which includes VAT tax of Rs.7,92,020/-, and penalty of Rs.15,84,041/under the relevant provisions of VAT Act. Further, the petitioner was directed to pay penalty for submitting the descriptive sheet belatedly under Section 13 read with Section 19 (4) (d) as also the penalty of Rs.500/- for not submitting form 18 under Section 82 (1) of the Act.

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2. Learned counsel for the petitioner submits that the impugned order is in fact appealable under Section 48 of the C.G. Value Added Tax Act, 2005. They submit that due to bonafide belief that the writ petition would be maintainable, this instant writ petition was filed on 05.05.2013, as the order impugned was communicated to the petitioner on 12.03.2013, in the light of the explanation dated 26.09.2013, which is also reflected from the document appended with the reply of the State. They would further submit that while this Court, on 22.03.2016 granted interim relief and the, impugned order was stayed subject to the petitioner’s depositing 50% of the demand and

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further furnish the bank guarantee for the remaining amount within a further period of one month from today. They would further submit that the interim order was complied with on 22.04.2016 and 50% amount of the demand raised was deposited by the petitioner. They further submit that the petitioner was prosecuting this writ petition under the bonafide belief. Lastly, they submit that this petition may be disposed of reserving the liberty to the petitioner to challenge the impugned order before the Appellate Authority under Section 48 of the VAT Act. They further submit that according to Section 48 (4) (d) of the VAT Act, as the petitioner has already deposited 50% amount, the Appellate Authority is required to stay the recovery of the balance amount, therefore, in the event, an appeal is filed, the recovery of the further amount may be stayed, till the disposal of the appeal.

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3. This proposition is not opposed by the learned counsel for the State.

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4. Heard the learned counsel for the parties and also considered their rival submissions.

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5. Admittedly, the order impugned is appealable under Section 48 of the VAT Act. Instead of filing the appeal, the petitioner has approached this Court by filing the writ petition challenging the impugned order.

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6. Be that as it may, this Court is inclined to dispose of the petition reserving liberty in favour of the petitioner to prefer an appeal before the Appellate Authority in light of Section 48 of the VAT

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Act. The petitioner is at liberty to file the statutory appeal within 30 working days from the date of receipt of copy of this order. In the event, the appeal is filed, the same shall be decided by the Appellate Authority, on its own merits, preferably within a period of 60 days thereof. Till then, the recovery of the balance amount shall not be made from the petitioner.

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7. Certified Copy filed as Annexure P/3 shall be returned to the petitioner after obtaining attested to photocopy of the same.

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8. If the appeal is not filed as observed above within the stipulated time, the respondents are free to recover the amount of tax, penalty etc. as imposed upon the petitioner.

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WPT No. 54 of 2013

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9. The petitioner has filed the present writ petition and prayed for the following reliefs:-

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“10.1 Quashing impugned reassessment order dated 28-12-2012 being “Annexure P-3” passed by the Deputy Commissioner Commercial Tax Range-2, Raipur as being without jurisdiction.

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10.2 Directing as an interim measure stay of demand of Rs.11,79,887.00 (Rupees Eleven Lakhs Seventy Nine Thousand Eight Hundred and Eighty Seven only) raised under impugned order dated 28-12-2012 being “Annexure P-3” passed by the Deputy Commissioner Commercial Tax, Range-2, Raipur till the decision of this petition.

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10.3 Staying the effect and operation of impugned order dated 28-12-2012 being “Annexure P-3” passed by the Deputy

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Commissioner Commercial Tax Range-2, Raipur till the decision of this petition. 10.4 Directing respondents herein not to take any coercive action till the decision of this petition.

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10.5 Granting any other relief that the Court may deem fit.”

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10. Learned counsel for the petitioner submits that the petitioner was saddled with liability of Rs.11,79,887/- to pay which includes entry tax and penalty by the impugned order passed by Divisional Deputy Commissioner of Commercial Tax, Division No.2, Raipur. They submit that by virtue of Section 13 of the Entry Tax Act, this order is appealable under Section 48 of the VAT Act. They would further submit that this Court on 22.03.2016 granted interim relief and the, impugned order was stayed subject to the petitioner depositing 50% of the demand and further furnish the bank guarantee for the remaining amount within a further period of one month from today. They would further submit that the interim order was complied with on 22.04.2016 and 50% amount of the demand raised was deposited by the petitioner. Therefore, they submit that this petition may be disposed of by reserving liberty to the petitioner to avail the remedy of appeal under Section 48. They further submit that in light of Section 48 (4) (d) of the VAT Act, as 50% amount has already been deposited, statutory stay of recovery of the reminder may be granted.

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11. This proposition is not opposed by the learned counsel for the State.

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12. Heard the learned counsel for the parties and also considered their rival submissions.

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13. Admittedly, the order impugned is appealable under Section 48 of the VAT Act. Instead of filing the appeal, the petitioner has approached this Court by filing the writ petition challenging the impugned order.

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14. Be that as it may, this Court is inclined to dispose of the petition reserving liberty in favour of the petitioner to prefer an appeal before the Appellate Authority in light of Section 48 of the VAT Act within 30 working days from the date of receipt of copy of this order. In the event, the appeal is filed, the same shall be decided by the Appellate Authority, on its own merits, preferably within a period of 60 days from the date of filing of appeal. Till then, the recovery of the balance amount shall not be made from the petitioner.

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15. Certified Copy filed as Annexure P/3 shall be returned to the petitioner after obtaining attested to photocopy of the same.

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16. If the appeal is not filed as observed above within the stipulated time, the respondents are free to recover the amount of tax, penalty etc. as imposed upon the petitioner.

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Sd/-

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(Sachin Singh Rajput) Judge

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Priyanka

M/s Manmath Nath Kundu and Sons v. Deputy Commissioner Of Commercial Tax Anors

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M/s Manmath Nath Kundu and Sons v. Deputy Commissioner Of Commercial Tax Anors

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