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    CWP 5397 2018 23 03 2018 Final Order

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    gstrefunds mohali
    The document summarizes a court case where Larsen & Toubro Limited filed a writ petition challenging an order dismissing its appeal against a tax assessment order. The court dismissed the petition, finding that the appellate authority properly exercised its discretion in requiring a 10% pre-deposit of the tax amount as a prerequisite to hear the appeal. However, the court also stated that if the pre-deposit amount is deposited by a specified date, then the appeal would be heard on its merits.

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    CWP 5397 2018 23 03 2018 Final Order

    Uploaded by

    gstrefunds mohali
    20 views4 pages
    The document summarizes a court case where Larsen & Toubro Limited filed a writ petition challenging an order dismissing its appeal against a tax assessment order. The court dismissed the petition, finding that the appellate authority properly exercised its discretion in requiring a 10% pre-deposit of the tax amount as a prerequisite to hear the appeal. However, the court also stated that if the pre-deposit amount is deposited by a specified date, then the appeal would be heard on its merits.

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    CWP_5397_2018_23_03_2018_FINAL_ORDER

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    The document summarizes a court case where Larsen & Toubro Limited filed a writ petition challenging an order dismissing its appeal against a tax assessment order. The court dismissed the petition, finding that the appellate authority properly exercised its discretion in requiring a 10% pre-deposit of the tax amount as a prerequisite to hear the appeal. However, the court also stated that if the pre-deposit amount is deposited by a specified date, then the appeal would be heard on its merits.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    20 views4 pages

    CWP 5397 2018 23 03 2018 Final Order

    Uploaded by

    gstrefunds mohali
    The document summarizes a court case where Larsen & Toubro Limited filed a writ petition challenging an order dismissing its appeal against a tax assessment order. The court dismissed the petition, finding that the appellate authority properly exercised its discretion in requiring a 10% pre-deposit of the tax amount as a prerequisite to hear the appeal. However, the court also stated that if the pre-deposit amount is deposited by a specified date, then the appeal would be heard on its merits.

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    © All Rights Reserved
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    Download as pdf or txt
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    IN THE HIGH COURT OF PUNJAB & HARYANA AT

    CHANDIGARH
    CWP No. 5397 of 2018 (O&M)
    Date of Decision: 23.03.2018

    Larsen & Toubro Limited …..Petitioner

    Versus

    State of Punjab and another …..Respondents

    CORAM: HON’BLE MR.JUSTICE S.J.VAZIFDAR, CHIEF JUSTICE


    HON’BLE MR. JUSTICE AVNEESH JHINGAN, JUDGE

    Present : Mr. Sujit Ghosh, Advocate withMr. Arjun Sheoran and


    Mr. Onkar, Advocates, for the petitioner(s).

    Mr. Pankaj Gupta, Additional Advocate General, Punjab,


    for the respondents.
    ****

    S.J.VAZIFDAR, CHIEF JUSTICE

    The petitioner has sought a writ of certiorari to quash an order

    dated 30.06.2017/08/01/2018 passed by respondent No.2 dismissing its appeal

    against an order dated 11.11.2013 passed by the Assistant Excise & Taxation

    Commissioner-cum-Designated Officer. The proceedings were in respect of the

    assessment year 2009-10. The petitioner also seeks a writ of mandamus

    directing respondent No.2 to reconsider its appeal after waiving the condition of

    pre-deposit of 25% under section 62(5) of the Punjab Value Added Tax Act,

    2005 (PVAT Act).

    2. The petitioner executed various works contracts. While scrutinizing

    the petitioner’s return, it was detected that it had made deductions on account of

    the labour expenses and had reflected heavy interstate sales under the Central

    Sales Tax Act, 1956 and had not deposited the supporting documents. The

    assessment proceedings were, therefore, initiated by the Excise and Taxation

    Officer-cum-Assessing Officer and an additional amount of about `44.36 crores

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    CWP No. 5397 of 2018 (O&M) 2

    under the PVAT Act was created by imposing penalty under section 53 and

    interest under section 32(3) of the PVAT Act.

    3. The petitioner challenged the order before the Joint Director (INV.)

    Jal.-cum-DCST (Appeals), Mohali. The appeal was on the ground that the

    demand raised was without jurisdiction, repugnant to the scheme of the statute

    and in violation of the principles of natural justice. Several other issues

    including as regards the interpretation of the provisions of the Constitution of

    India have been raised. The impugned order concludes as follows:-

    “In response to the notice issued by the undersigned


    Shri Rishab Singla, counsel for the appellant appeared
    before the undersigned and ETI Shri Bharat Sharma
    appeared on behalf of the department. During the hearing
    before the undersigned and the perusal of the appeal, it was
    revealed that the appellant did not deposit 25%of the
    additional demand while filing the appeal though this is a
    pre-requisite for filing of appeal as per provisions of section
    62(5) of PVAT Act-2005 and as such the appeal could not be
    entertained. The appellant was directed to deposit 25% of the
    tax which is Rs. 4,05,00,000/- (Rs.16,13,06,317/-) from the
    additional demand. After hearing the learned counsel the
    appellant was directed to deposit 25% on the next date of
    hearing i.e. Rs. 4,05,00,000/-. The learned counsel for the
    appellant sought time to comply with the provisions but the
    same was not deposited.

    Any proof of deposit of 25% of the tax by the appellant


    has been neither submitted by him as directed by this Court
    nor while filing the appeal whereas deposit of the 25% of the
    additional demand is a pre-requisite for filing appeal. Section
    62(5) of the Punjab VAT Act 2005 read with Rules 71 to 72 of
    Punjab VAT Rules makes it amply clear that the requirement
    of deposit of the 25% of additional demand is to be fulfilled
    while filing the appeal. As such it was for the appellant to
    fulfil the conditions of the appeal which he failed to despite
    the fact that he was given ample opportunities to deposit.
    The judgment in this case was reserved on 05.06.2017 and
    is hereby released on 30.06.2017 without any pre-requisite
    deposit for filing appeal.

    As such, the appeal is dismissed in limine.”

    4. We will presume that it is open to the Appellate Authority to reduce

    the pre-deposit. The Appellate Authority has in fact done so by demanding the

    deposit of only 25% of the tax and not 25% of the entire amount including

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    CWP No. 5397 of 2018 (O&M) 3

    interest and penalty. It is true that the order does not contain elaborate reasons.

    However, in the facts and circumstances of this case, we are not inclined to

    exercise our jurisdiction under Article 226 of the Constitution of India. The

    Appellate Authority has exercised its discretion by demanding only 25% of the

    tax. Thus, the amount of pre-deposit is only about 10% of the total demand.

    There are several issues regarding the applicability of the Act that require

    consideration. Apart from certain bald averments there is nothing to indicate that

    the financial position of the appellant is likely to be adversely affected to such

    an extent that the entire pre-deposit ought to be waived.

    5. Mr. Gupta relied upon the fact that the petitioner before the

    Appellate Authority had sought time to deposit the amount but the petitioner

    denied the same. Considering the view that we have taken, it is not necessary to

    express any opinion in this regard.

    6. At stage of deciding the issue of pre-deposit, the appellate authority

    is not expected to take a final view on the merits of the case. Only a prima facie

    view of the case is to be taken. The contentions raised are debatable. They have

    to be adjudicated upon. The waiver of the pre-deposit is not as a matter of

    routine. The deposit is a pre requisite as per the Act. It is only in appropriate

    cases that the appellate authority can use its discretion to reduce or waive the

    same to ensure that the appeal provisions are not rendered nugatory.

    7. Apart from reiterating the grounds raised in appeal the petitioner

    has not shown that the direction of appellate authority to deposit approximately

    10% of the demand would not be financially possible and hence remedy of

    appeal provided under the Act would be frustrated.

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    CWP No. 5397 of 2018 (O&M) 4

    8. The petition is, therefore, dismissed. However, in the event of the

    petitioner depositing the amount as required by the impugned order by

    30.04.2018, the appeal shall be heard on-merits.

    (S.J. VAZIFDAR)
    CHIEF JUSTICE

    (AVNEESH JHINGAN)
    JUDGE
    23.03.2018
    ravinder/parkash

    Whether speaking/reasoned √Yes/No


    Whether reportable Yes/No√

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