Bombay High Court
Nircon Construction vs The State Of Maharashtra And 2 Ors on 26 July, 2022
Bench: K.R. Sriram, Shri Arif Doctor
Digitally signed
by GAURI
GAURI AMIT
AMIT GAEKWAD
Date: 1/3
GAEKWAD 2022.07.28
17&18.WP-2788-2019.doc
11:12:41 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
(17) WRIT PETITION NO.2788 OF 2019
WITH
INTERIM APPLICATION NO.1286 OF 2019
IN
WRIT PETITION NO.2788 OF 2019
Nircon Construction ....Petitioner
V/s.
State of Maharashtra and Ors. ....Respondents
WITH
(18) WRIT PETITION NO.2789 OF 2019
WITH
INTERIM APPLICATION NO.637 OF 2019
WITH
INTERIM APPLICATION ON.1302 OF 2019
IN
WRIT PETITION NO.2789 OF 2019
Nircon Construction ....Petitioner
V/s.
State of Maharashtra and Ors. ....Respondents
----
Ms. Sharon Patole for petitioner in both petitions.
Mr. A.A. Kumbhakoni, Advocate General a/w. Ms. Jyoti Chavan, AGP for
respondents - State in both petitions.
----
CORAM : K.R. SHRIRAM &
A.S. DOCTOR, JJ.
DATED : 26th JULY 2022
P.C.:-
1 The reliefs sought in these petitions are covered by a judgment of
Full Bench of this Court pronounced on 12 th July 2022 (yet to be reported) in
United Projects V/s. The State of Maharashtra and Anr. 1 Paragraph 197 of the
said judgment reads as under :
197. We accordingly answer the question of law referred to Full
1. Writ Petition No.2883 of 2018 alongwith two other petitions.
Gauri Gaekwad
2/3 17&18.WP-2788-2019.doc
Bench as under :-
(i) Question of Law (a) i.e."whether the State of Maharashtra has
legislative competence to enact the Maharashtra Tax Laws (Levy,
Amendment and Validation) Act, 2017 and the Maharashtra Tax
Laws (Amendment and Validation) Act, 2019 to amend the
provisions of the Maharashtra Value Added Tax Act, 2002 to
incorporate mandatory pre-deposit for filing appeals against the
assessment orders pertaining to all the goods after 16th September
2016 that is post 101 Constitutional Amendment Act, 2016?" is
answered in affirmative and in favour of the Revenue.
(ii) Question of Law (b) i.e."whether Explanation to Section 26 of
the MVAT Act introduced with effect from 15th April 2017 by the
Maharashtra Tax Laws (Amendment and Validation) Act, 2019
takes away the right of the assessee to file an appeal without
statutory deposit in respect of orders passed for the assessment
years prior to 15th April 2017 and whether the Explanation
nullifies the decision of the Division Bench of this Court (Nagpur
Bench) in the case of Anshul Impex Pvt. Ltd. Vs. State of
Maharashtra in Sales Tax Appeal No.2/2018?" is answered in
negative and in favour of Revenue.
(iii) The question of law (c) as to whether the Explanation nullifies
the decision of the Division Bench of this Court (Nagpur Bench) in
the case of Anshul Impex Pvt. Ltd. Vs. State of Maharashtra in Sales
Tax Appeal No.2/2018 is answered in negative and in favour of the
Revenue.
(iv) Question of Law (c) i.e. "whether the decision of the Division
bench in the case of Anshul Impex Pvt. Ltd. Vs. State of
Maharashtra laying down that right of filing appeal accrues on the
date of order of assessment and requirement of mandatory pre-
deposit introduced by way of amendment does not apply to the
orders passed in the assessment years prior to 15th April, 2017, is a
correct proposition since the right of appeal can be made
conditional by the Legislature with express indication" is answered
in negative and in favour of the Revenue and is thus declared not a
good law.
(v) It is declared that the explanation inserted in 2019 amendment
w.e.f. 15th April, 2017 would apply to those orders which are
passed after 15th April, 2017 and not to the prior orders. All earlier
orders are governed by the original provisions of Section 26(6) and
not by the amendment. Both the provisions i.e. old Section 26(6)
and the amendment introduced by Sub Section 6A, 6B and 6C to
Section 26 and the explanation thereto will apply and co-exist.
(vi) Office is directed to place these matters before the Division
Bench having assigned these matters for passing further orders.
Gauri Gaekwad
3/3 17&18.WP-2788-2019.doc
2 In the circumstances, nothing would survive in these petitions.
3 Petitions dismissed. Consequently, interim applications also stand
disposed.
4 Should petitioner wish to file an appeal before the MVAT
Appellate Authorities, petitioner may do so within four weeks from today.
(A.S. DOCTOR, J.) (K.R. SHRIRAM, J.)
Gauri Gaekwad
