Allahabad High Court
M/S Subharti K.K.B. Charitable ... vs State Of U.P. And 3 Others on 26 September, 2023
Bench: Pritinker Diwaker, Chief Justice, Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:188650-DB
Chief Justice's Court
Case :- WRIT TAX No. - 1118 of 2023
Petitioner :- M/S Subharti K.K.B. Charitable Trust
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Ram M. Kaushik,Gaurav Gulati,Rishabh Raj
Counsel for Respondent :- C.S.C
Hon'ble Pritinker Diwaker,Chief Justice
Hon'ble Ashutosh Srivastava,J.
1. Heard Shri Ram M. Kaushik, learned counsel for the petitioner and the learned Standing Counsel for the respondents.
2. The challenge in this writ petition is to the order dated 28.07.2023 passed by the respondent no. 4 i.e. the Deputy Commissioner Commercial Tax, Meerut exercising powers under Section 34 (8) of the U.P VAT Act, 2008 imposing a penalty of Rs. 91,86,656/- upon the petitioner and requiring the petitioner to deposit a sum of Rs. 86,04,010/- after adjusting a sum of Rs. 5,82,646/- deposited in excess, in the year 2008-09, as also the order dated 06.05.2023 passed by the respondent no. 3 i.e. the Joint Commissioner Executive Commercial Tax, Sector-A, Meerut in purported exercise of powers under Section 56 of the VAT Act, 2008. A further prayer for quashing the entire proceedings emanating out of a notice dated 11.09.2020 issued under Section 34 (8) of the VAT Act, 2008 along with certain other ancillary reliefs has been claimed.
3. It is the case of the petitioner that it is a Public Charitable Trust duly incorporated under the Provisions of the Indian Trust Act, 1882 and is primarily involved in imparting higher education including medical education and has been providing medical facilities to underprivileged patients having a general hospital and OPD on charge of Rs. 20/- as registration. The petitioner for the Assessment Year 2014-15 deposited tax to the tune of Rs. 1,90,65,162/- under Section 34 (1) towards TDS including Rs. 50,051/- towards interest. The Assessing Officer under assessment order dated 21.03.2018 recorded his satisfaction regarding the tax deposited. Though the assessment of the petitioner was comparable with the passing of the order dated 21.03.2018 under Section 28 (2) (i) of the VAT Act, 2008 the petitioner was issued notice under Section 34 (8) of the Act to show cause why penalty towards delay in depositing tax be imposed upon the petitioner as the petitioner had deposited a sum of Rs. 23,84,854/- on 28.04.2015 without interest whereas the amount was required to be deposited on 20.04.2015. Another deposit of Rs. 28,08,474/- was got deposited after deduction of TDS on 26.05.2015 which was required to be deposited on 20.04.2015. The petitioner filed detailed reply and the notice under Section 34 (8) was withdrawn recording the fact that the petitioner was liable to be proceeded with under Section 54 10 (a) of the Act. Thereafter, an ex-parte order dated 06.01.2021 was passed imposing penalty upon the petitioner to the tune of Rs. 9,18,666/- towards accrued interest on delayed payment of tax of Rs. 45,93,328/-. The petitioner filed a restoration application before the respondent no. 4 which is stated to be pending consideration. Meanwhile the respondent no. 4 issued notice under Section 56 of the VAT Act, 2008, with regard to the adjudication of proceedings under Section 34 (8) of the Act. The notices were duly replied to by the petitioner by filing detailed objections. The objections have not found favour with the respondent no. 3 and the impugned order dated 06.05.2023 has been passed whereby and whereunder the order dated 28.09.2020 has been held to be illegal and improper and the matter has been remanded for passing fresh orders. Consequent to the remand order the respondent no. 4 has proceeded to pass the order dated 28.07.2023, under Section 34 (8) of the VAT Act, 2008.
4. It has been argued by learned counsel for the petitioner that the impugned order suffers from complete non application of mind in as much as the petitioner can at best be liable to pay interest upon the payment of tax which was paid after a delay of few days only. The impugned order is in defiance of the material available on record as the provisions of Section 34 (8) of the VAT Act are not attracted to the case of the petitioner. The proceedings are in the teeth of Section 40 of the VAT Act. The impugned orders are in complete disregard of the judgment rendered in the case of M/s Sharda Educational Trust vs. Commissioner, Commercial Tax, reported in 2018:AHC:1996 25.
5. Learned Standing Counsel in opposition to the writ petition submits that the impugned orders are just and proper and warrant no interference by this Court under Article 226 of the Constitution of India particularly in view of the fact that the impugned order dated 28.07.2023 under Section 34 (8) of the VAT Act, 2008 is Appealable under Section 57 of the Act. The arguments being raised by the petitioner before this Court was raised before the respondent no. 4 which have been suitably dealt with by the respondent no. 4. It is accordingly submitted that the writ petition is misconceived and warrants rejection at the threshold.
6. We have heard the learned counsel for the petitioner as also the learned Standing Counsel and have perused the records. From the arguments advanced and the materials brought on record we are satisfied that this is not a fit case where the existence of alternative remedy can be bypassed. The petitioner shall have all liberty to raise all such plea/ grounds as raised before us before the Appellate Forum. In such view of the matter the petitioner is relegated to file an appeal before the Appellate Authority under Section 57 of the VAT Act 2008.
7.The writ petition is dismissed on the ground of availability of alternative remedy.
Order Date :- 26.9.2023
Deepak/
(Ashutosh Srivastava,J.) (Pritinker Diwaker,CJ.)
