Bombay High Court
Kalpataru Power Transmission Ltd vs State Of Maharashtra And 2 Ors on 3 August, 2023
Bench: G. S. Kulkarni, Jitendra Shantilal Jain
2023:BHC-OS:7841-DB
Tauseef 01-wp.4505.2022.J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.4505 OF 2022
Kalpataru Power Transmission Ltd.,
Having its offce at, 101, Kalpataru Synergy,
Opposite Grand Hayat Hotel,
Santacruz (E), Mumbai - 400 055. ...Petitioner
Versus
1. State of Maharashtra,
Main Building, Mantralaya,
Madam Cama Road, Hutatma Rajguru
Chowk, Mumbai - 400 032.
2. Commissioners of Sales Tax,
Maharashtra State, Having his offce at
GST Bhavan, Mazgaon, Mumbai - 400 010.
Investigation Division - E - 005,
Investigation - A, Mazgaon,
Mumbai - 400 010.
3. Deputy Commissioner of State Tax,
Investigation Division-E-005,
Investigation-A, Mazgaon,
Mumbai-400010. ...Respondents
********
Ms. Nikita Badheka a/w. Mr. Parth Badheka, Ms. Lata Nagal for
the Petitioner.
Mr. Dushant Kumar, AGP for the Respondent (State).
********
CORAM : G. S. KULKARNI,
JITENDRA JAIN, J.J.
RESERVED ON : 17th JULY, 2023.
PRONOUNCED ON : 3rd AUGUST, 2023
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Oral Judgment (Per Jitendra Jain, J.)
1. Rule. Rule made returnable forthwith. Heard fnally by
consent of the parties.
2. This petition under Article 226 of the Constitution of
India challenges review order dated 8th March 2021, passed by
Respondent No.3 under Section 25 of the Maharashtra Value
Added Tax Act, 2002 (hereinafter referred as "MVAT Act") and
order dated 6th July 2021, passed by Respondent No.3 on
rectifcation application fled by the Petitioner, to rectify review
order, under Section 24 of the MVAT Act for the fnancial year
2006-07.
3. Narrative of the relevant events:-
(i) During the fnancial year 2006-07, the Petitioner executed
two projects of electricity distribution line for Maharashtra
State Electricity Distribution Company Limited (MSEDCL)
and one works contract project for Gas Authority of India
Limited (GAIL) for laying down the pipeline of gas between
Dabhol to Panvel.
(ii) The Petitioner with respect to two contracts with MSEDCL
claimed deduction from the contract price @ 25% as per Table
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prescribed in Rule 58 of the MVAT Rules for arriving at value
of transfer of property in goods. However, with respect to
contract with GAIL, the Petitioner claimed deduction under
Rule 58(1)(a)-(h) on actual basis aggregating to
Rs.30,59,93,405/-.
(iii) On 18th February 2013, Deputy Commissioner of Sales Tax
issued a notice to the Petitioner for verifcation of books of
accounts to examine discrepancies found in the course of the
business audit conducted by the revenue. The said notice
records discrepancies found by the revenue after verifcation
of the books of accounts. The said notice was made
returnable on 25th February 2013.
(iv) On 28th February 2013, the Petitioner replied to the aforesaid
notice and annexed copies of ledger in support of its
submission.
(v) On 18th March 2013, the Petitioner fled further submission
pursuant to the above notice giving its explanation as to why
the service tax of Rs.1,05,41,933/- should be allowed as a
deduction under Rule 58.
(vii)On 27th April 2013, further submission was made wherein it
is recorded that the Deputy Commissioner has verifed all the
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documents fled by the Petitioner.
(viii) On 11th December 2015, an assessment order under Section
23 (3) came to be passed by the Assistant Commissioner of
Sales Tax, Investigation Branch-A, Mumbai. In the
assessment order, the Assistant Commissioner of Sales Tax
records that the Petitioner has produced relevant books of
accounts. The said order also records the contract executed
by the Petitioner with GAIL. The Assistant Commissioner of
Sales Tax also records that out of three contracts, the
Petitioner has claimed deduction @ 25% under Rule 58 for
two contracts issued by MSEDCL and for one contract of
pipeline project with GAIL, the Petitioner has claimed
deduction under section 58 of the MVAT Act on actual basis
aggregating to Rs.30,59,93,405/-. The assessment order
records that the deduction is allowed after verifcation of
books of accounts i.e., trial balance, expenses, ledger copies,
contract copies, sample copies, etc. The assessment order,
however, raises a demand of Rs.8,27,465/- on some other
issue.
(ix) On 22nd October 2018, Respondent No.3 issued a notice in
Form No.309 under Section 25 of the MVAT Act to review the
assessment order passed under Section 23(3) of the Act. The
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relevant extract of the show cause notice dated 22 nd October
2018, reads as under:-
"For the period 2006-2007, wrongful deduction u/r 58 of
MVAT Act allowed in assessment order in respect of M/s.
GAIL Project on proft of Supply of labour and services at
Rs.9,41,22,626/-. This proft on sale of labour only
permissible [if there were two contract agreement by the
dealer for the work with principal]. One for labour supply for
which deduction of Rs.22,42,00,786/- was allowed and
another for rest of the work for which deduction for proft on
supply of labour & service was allowed at Rs.9,41,22,646/-.
Hence, deduction on account of proft on supply of labour &
service is not allowable."
(emphasis supplied)
(x) On 2nd November 2018, the Petitioner fled detailed
submissions objecting to the notice issued under Section 25
of the MVAT Act. The Petitioner submitted that the issue
raised in the show cause notice was also raised by Sales Tax
Revenue Audit Team, which was duly replied by the
Petitioner. The Petitioner further submitted that for a
turnkey projects, there cannot be two separate agreements,
one for sale of the goods and another for supply of labour and
services. The Petitioner relied upon the decision in the case
of Builders Association of India1 and Gannon Dunkerley & Co.
Vs. State of Rajasthan2 in support of its contention that
1 73 STC 370 (SC)
2 (1993) 88 STC 204 (SC)
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turnkey project is indivisible. The Petitioner requested
Respondent No.3 to close the proceedings initiated under
Section 25 of the MVAT Act pursuant to the said submissions.
(xi) On 23rd November 2020, the successor of Respondent No.3
issued a similar show cause notice to review the assessment
order on the ground that deduction under Rule 58 amounting
to Rs.9,41,22,626/- on proft of supply of labour and services
has been wrongly allowed. According to Respondent No.3,
under Rule 58(1)(h) deduction in respect of proft earned by
the contractor to the extent related to the supply of said
labour and service is only allowable, whereas proft of
Rs.9,41,22,626/- was alleged to be the proft earned by the
Petitioner for carrying out all the activities of completion of
the job work. The said show cause notice, therefore, proposed
to withdraw the deduction of Rs.9,41,22,626/-.
(xii)On 26th November 2020, the Petitioner replied to the
aforesaid notice and reiterated its detailed submissions made
on earlier occasions. The Petitioner stated that the assessing
offcer has verifed the facts in the course of the assessment
proceedings and, thereafter, allowed the deduction. The
Petitioner also relied upon the proceedings under Section 22,
wherein, these issues were examined by the audit team of the
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Respondents. The Petitioner challenged the jurisdiction of
Respondent No.3 to initiate proceedings under Section 25 of
the MVAT Act. The Petitioner prayed for dropping off the
review proceedings in the light of the said submissions.
(xiii) On 29th December 2020 and 31st December 2020, further
submissions were made by the Petitioner reiterating what
was submitted earlier and prayed for dropping of the
proceedings.
(xiv) On 8th February 2021, the Petitioner once again fled the
submissions and submitted that the books of accounts have
been verifed by all statutory authorities of the country and
further placed reliance on various decisions praying for
dropping the proceedings. The Petitioner also gave a working
of the taxable turnover from the contracts with MSEDCL and
GAIL.
(xv)On 17th February 2021, Respondent No.3 sent an email to the
Petitioner stating that Rule 58(1)(h) of MVAT Rules does not
allow deduction on proportionate basis and, therefore, the
tax liability is proposed to be worked out as per the table
annexed to the said email.
(xvi) On 8th March 2021, Respondent No.3 passed an order in
review under Section 25 of the MVAT Act rejecting the
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submissions made by the Petitioner. Respondent No.3 in the
said order held that since the Petitioner has failed to submit
correct amount of deduction of proft, they are not eligible to
get the deductions provided under Rule 58(1)(a) to (h) and,
therefore, the Petitioner will be allowed to claim deduction
only as per Table under Rule 58(1) of the MVAT Rules.
Respondent No.3, therefore, allowed deduction not on the
actual basis with respect to GAIL project, but by applying a
rate of 20% as per Serial No.11 of Table to Rule 58(1).
(xvii) On 18th May 2021, the Petitioner made an application in
form 307 for rectifcation of mistakes in the order in review
dated 8th March 2021. The Petitioner also fled various
submissions in support of its application for rectifcation of
the order.
(xviii) On 6th July 2021, Respondent No.3 rejected the rectifcation
application. In the said order, the Respondents justifed the
review order by placing reliance on proviso to Rule 58(1).
4. It is on this background that the Petitioner has
approached this Court praying for quashing of the order dated 8 th
March 2021 passed under Section 25 of the Maharashtra Value
Added Tax Act, 2002 (MVAT Act) and the order rejecting the
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rectifcation application dated 6th July 2021 under Section 24 of
the MVAT Act.
5. Submissions of the Petitioner :- The Petitioner submitted
that they are challenging the very jurisdiction of the Respondents
to pass the impugned order which is contrary to the decision of
the Supreme Court in case of M/s.Gannon Dunkerley and Co. &
Ors. Vs. State of Rajasthan & Ors. 3 and contrary to the provisions
of the Act and furthermore contrary to the principles of the
natural justice and therefore, even though an alternative remedy
is provided under the MVAT Act, the present petition is
maintainable under Article 226 of the Constitution of India. The
Petitioner further contended that show cause notice was issued
only to disallow a sum of Rs.9,41,22,626/- under Rule 58(1)(h) of
the MVAT Rules whereas in the impugned order, the Respondents
have disallowed all deductions claimed under Ruled 58(1)(a) to
(h), amounting to Rs.30,59,93,405/- and therefore, the impugned
order has travelled beyond the show cause notice. The
Petitioner further submitted that the basis of the show cause
notice dated 22nd October 2018 is that proft on sale of labour is
permissible deduction under Rule 58(1)(h) only, if there are
two contract agreements by the dealer for the work with the
principal and in the absence of the same, deduction on
3 (1993) 1 SCC 364
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account of proft on supply of labour and service is not allowable.
The Petitioner submitted that this is contrary to the decision in
the case of M/s.Gannon Dunkerley and Co. & Ors. (supra) and
also the very concept of the works contract which in the present
case is indivisible and cannot be split into two agreements. The
Petitioner also submitted that the impugned order is passed by
the Deputy Commissioner of the Sales Tax when a business audit
was already done under Section 22 of the Act by the Deputy
Commissioner of the Income Tax, Business Audit and as per
Section 25 of the MVAT Act, the Revisional Authority can review
the order of subordinate authority and not the order of a
coordinate offcer. The Petitioner further stated that the
application of 20% of the contract value as per Table under Rule
58(1) can be applied only if pre-conditions provided in proviso to
Rule 58(1) is satisfed which is that the accounts are not
maintained to enable a proper evaluation of the different
deductions or the accounts maintained are not clear or
intelligible. The Petitioner submitted that inasmuch as there is
no satisfaction recorded under the said proviso on the books of
accounts in the show cause notice, the Respondents were not
justifed in applying the rates prescribed in the Table under Rule
58(1) of the MVAT Rules but on the contrary, there are fndings
by the authority under the MVAT Act that books of accounts have
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been maintained properly for arriving at the deductions under
Rule 58 of the MVAT Rules. The Petitioner further relied upon the
decision in case of Godrej Sara Lee Ltd. Vs. Excise and Taxation
Offcer-cum-Assessing Authority and Ors.4 to contend that writ is
maintainable since an alternative remedy is not an effcacious
remedy and they are challenging very jurisdiction of the
authority in passing the review order and also violation of
principles of natural justice.
6. Submissions of the Respondents : Per contra, the
Respondents contended that the petition is not maintainable
since there is an alternative and adequate remedy of an appeal
provided under the Act. The Respondents further contended that
the order under Section 25 has not exceeded the show cause
notice dated 22nd October 2018 since the said show cause notice
refers to Rule 58 without specifying the clause of Rule 58 and
therefore, dis-allowance of all the deductions under Rule 58(1)
(a) to (h) are justifed and the same cannot be said to have been
passed without giving a show cause notice. The Respondents also
relied upon the second notice dated 23rd November 2020 in
support of their submission on this account. The Respondents
relied upon the assessment order to justify the order passed
under Section 25 of the MVAT Act and further submitted that
4 2023 SCC Online SC 95
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since the deductions on account of proft on supply of labour is
calculated on proportionate basis, the same cannot be allowed as
deductions under Rule 58(1)(h) of the MVAT Rules. The
Respondents relied upon page 11 of the Review Order to contend
that the condition laid down in the proviso to Rule 58 before
applying the rates prescribed in the table under Rule 58 has
been considered and therefore, it cannot be said that the
jurisdictional conditions are not satisfed before application of
the rates prescribed in the Table under Rule 58(1) of the MVAT
Rules. The Respondents therefore, have correctly invoked the
jurisdiction to pass an order under Section 25 of the MVAT Act.
7. We have heard the learned counsels for the Petitioner
and the Respondents and with the assistance of the counsels, we
have perused the records of the present petition.
ANALYSIS AND REASONS :-
8. From the contention as urged on behalf of the parties.
We are called upon to examine whether the orders impugned in
the present petition passed by Respondent No.2 would satisfy the
test of law when questioned on the ground of jurisdiction and
illegality being attributed to it by the Petitioners, and in such
context, whether, in the facts and circumstances of the case,
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whether we are required to entertain this petition, by not
accepting the objection urged on behalf of the revenue of an
alternate remedy available to the Petitioners to fle an appeal
before the Tribunal. The following discussion would aid our
conclusion on such issues.
9. To appreciate the controversy it would be necessary to
note the relevant provisions of the MVAT Act and the MVAT
Rules:-
"MVAT Act:
Section 25. Review
[(1) After any order including an order under this section or any
order in appeal is passed under this Act, rules or notifcations, by
any offcer or person subordinate to him, the Commissioner may, of
his own motion or upon information received by him, call for the
record of such order and examine whether:-
(a) any turnover of sales or purchases has not been brought to
tax or has been brought to tax at lower rate, or has been
incorrectly classifed, any claim is incorrectly granted or that
the liability to tax is understated, or
(b) in any case, the order is erroneous, in so far as it is
prejudicial 1 to the interests of revenue, ............]"
MVAT Rules:-
58. Determination of sale price and of purchase price in respect
of Sale by transfer of property in Goods (whether as good or in
some other form) involved in the execution of a works contract.
(1) The value of the goods at the time of the transfer of
property in the goods (whether as goods or in some other
form) involved in the execution of a works contract may be
determined by effecting the following deductions from the
value of the entire contract, in so far as the amounts
relating to the deduction pertain to the said works
contract:-
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(a) labour [service tax collected separately and service
charges] for the execution of the works;
(b) amounts paid by way of price for sub-contract, if
any, to sub-contractors;
(c) charges for planning, designing and architect's fees;
(d) charges for obtaining on hire or otherwise,
machinery and tools for the execution of the works
contract;
(e) cost of consumables such as water, electricity, fuel
used in the execution of works contract, the property
in which is not transferred in the course of execution
of the works contract;
(f) cost of establishment of the contractor to the
extent to which it is relatable to supply of the said
labour and services;
(g) other similar expenses relatable to the said supply
of labour and services, where the labour and services
are subsequent to the said transfer of property;
(h) proft earned by the contractor to the extent it is
relatable to the supply of said labour and services:
Provided that where the contractor has not maintained
accounts which enable a proper evaluation of the different
deductions as above or where the Commissioner fnds that the
accounts maintained by the contractor are not suffciently clear
or intelligible, the contractor or, as the case may be, the
Commissioner may in lieu of the deductions as above provide a
lump sum deduction as provided in the Table below and
determine accordingly the sale price of the goods at the time of
the said transfer of property.
TABLE
Sr. No. Type of Works Contract *Amount to be deducted
from the contract price
(expressed as a percentage
of the contract price)
(1) (2) (3)
1 ....... .......
2 ....... .......
3 ....... .......
4 ....... .......
5 ....... .......
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6 ....... .......
7 ....... .......
8 ....... .......
9 ....... .......
10 ....... .......
11 Laying of pipes Twenty Per cent.
12 ....... .......
13 ....... .......
[14 ....... .......
15 ....... .......
(emphasis supplied)
10. On a perusal of the show cause notice dated 22 nd October
2018 and on a complete reading of the said show cause notice
which is reproduced above, it is very clear that the show cause
notice was issued only to deny deduction on account of proft on
supply of labour and service, amounting to Rs.9,41,22,626/-
which would only fall under Rule 58(1)(h) and therefore, the
reference to Rule 58 in the show cause notice although not
specifying the sub-rule, should be read to mean that the show
cause was only for disallowance of the item under Rule 58(1)(h)
of the MVAT Rules and not all the deductions under Rule 58(1)(a)
to (h). This is further fortifed by the second show cause notice
dated 23rd November 2020 which specifcally refers to Rule 58(1)
(h) only to deny the deduction of Rs.9,41,22,626/-. The fgure of
Rs.9,41,22,626/- in the show cause notice is only under Rule
58(1)(h). Therefore, in our view, the show cause notice was only
for item to be disallowed under Rule 58(1)(h) and not all the
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items under Rule 58(1)(a) to (h). However, in the review order
dated 8th March 2021 under Section 25 of the MVAT Act, what is
disallowed is all the items under Rule 58(1)(a) to (h), amounting
to Rs.30,59,93,405/-. The Respondents have not brought to our
notice any document which would show that the show cause
notice was issued for disallowing all the items specifed in Rule
58(1)(a) to (h). It is well settled that any order beyond the show
cause notice is bad-in-law. The Supreme Court in case of
Commissioner of Customs, Mumbai vs M/s. Toyo Engineering
India Limited, 2006 (7) SCC 592 noted that the Department
cannot be allowed travel beyond the show cause notice. The
Supreme Court further observed that it would be against the
principles of natural justice that a person who has not been
confronted with any ground is saddled with liability thereof and
since the issue did not form the basis of the show cause notice
and was not even confronted to the order passed beyond show
cause notice is to be quashed.
11. The Supreme Court in case of Commissioner Of Central
Excise, Nagpur vs. M/s. Ballarpur Industries Ltd., 2007 (8) SCC
89 observed that if Rule 7 of the Valuation Rules 1975 have not
been invoked in the show cause notice, it would not be open to the
Commissioner to invoke the said rule in the remand proceedings.
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The view expressed by the Supreme Court in cases of
Commissioner of Customs, Mumbai vs. M/s.Toyo Engineering
India Limited (supra) and Commissioner Of Central Excise,
Nagpur vs. M/s. Ballarpur Industries Ltd. (supra) was applied in
subsequent decisions of the Supreme Court in case of The
Commissioner of Central Excise, Bhubaneswar-1 vs. M/S.
Champdany Industries Ltd., 2009 (9) SCC 466 and also in the
case of Commissioner of Central Excise Vs. Gas Authority of India
Limited, 2007 (15) SCC 91. Therefore, in our view, applying the
ratio of the Supreme Court referred to hereinabove, the impugned
order disallowing all the deductions under Rule 58(1)(a) to (h)
without giving any show cause notice to the Petitioner would be
rendered bad in law.
12. In our opinion such defect in the adjudication goes to the
root of the matter and is an incurable defect. Further the
Respondents in the review order have applied the rate of 20%
specifed in table under Rule 58(1). On a reading of Rule 58(1) of
the MVAT Rules, the rates specifed in the Table can be applied
only if the contractor has not maintained accounts which would
enable a proper evaluation of the different deductions as specifed
in Rule 58(1)(a) to (h) or where the Commissioner fnds that the
accounts maintained by the contractor are not suffciently clear
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or intelligible. It is only under these circumstances that the
Commissioner may in lieu of the deduction as prescribed under
Rule 58(1)(a) to (h) of the MVAT rules on actual basis can apply
the percentage specifed in the Table to arrive at the sale price of
the goods for the purpose of MVAT Act. On a reading of the
proviso to Rule 58(1), the pre-condition for applying the rates
specifed in the Table is non-maintenance of accounts for proper
evaluation of different deduction or the accounts maintained are
not suffciently clear or intelligible. In the instant case, the show
cause notice dated 22nd October 2018 and 23rd November 2020
does not allege that the rates prescribed in the table is to be made
applicable because the accounts maintained by the Petitioner are
not clear or intelligible or the accounts are not maintained for
proper evaluation of the different deductions prescribed under
Rule 58(1)(a) to (h). Therefore, in the absence of satisfying the
pre-condition prescribed under proviso to Rule 58(1) the
application of rate specifed in Table below Rule 58(1) in the fnal
review order is without jurisdiction. In our view, there was no
show cause notice invoking proviso to Rule 58(1) before being
made applicable in the review order and, therefore, on this
account also, the review order has been passed beyond the show
cause notice and without jurisdiction.
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13. Even otherwise, in the assessment order dated 11 th
December 2015, the Assistant Commissioner of Sales Tax has
recorded a fnding that he has verifed the books of accounts with
respect to the claim of the dealer under Rule 58 on actual basis.
Insofar as the GAIL project is concerned, the assessment order
records verifcation of trial balance, expense ledger copies,
contract copies, sample invoices, sub-contractors works order,
etc. The audit done under Section 22 of the Act by the Deputy
Commissioner prior to the passing of the said assessment order
also accepts the maintenance of the books of accounts by the
Petitioner with respect to the works contract executed by the
Petitioner.
14. In our view, therefore, even on this account, the
jurisdictional condition required for applying the rates prescribed
in the table to Rule 58(1) have not been complied with before
passing the review order and, therefore, even on this account, the
impugned order is without jurisdiction.
15. In the show cause notice, jurisdiction is sought to be
assumed on the premise that for claiming deduction of proft on
sale of labour, there has to be two contract agreements by the
dealer for the work with principal. This in our view is contrary to
the very concept of works contract. The works contract in the
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present case was an indivisible contract without bifurcation of the
goods and the service component which goes in for execution of
the work awarded to the contractor. The show cause notice has
been issued under a misapprehension that in a works contract
with GAIL there has to be two different contracts, one for the
material and the other for labour and service. Therefore, even on
this account, the impugned show cause notice has been issued
without application of mind.
16. Now coming to the objection as urged on behalf of the
Revenue that the petition ought not to be entertained on the
ground of an alternate remedy of an appeal being available to the
Petitioner to assail the impugned order. In view of the above
discussion, we are of the clear opinion that when our conclusion is
that the impugned order is in patent breach of the principles of
natural justice as also without jurisdiction the petition deserved
to be entertained. It is a settled position in law that if the action
of an authority is wholly without jurisdiction or contrary to the
principles of natural justice, a writ petition would be required to
be maintainable and the Petitioners should not be relegated to an
alternative remedy. The Petitioners challenge to the review was
clearly on the ground that the principles of natural justice are
violated in as much as the same is passed without satisfying the
pre-condition required for exercising power of review under
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Section 25 of the MVAT Act and under Rule 58(1) of the MVAT
Rules. The Constitution Bench of the Supreme Court in case of
State of Uttar Pradesh Vs. Mohammad Nooh, 1958 SCR 595
observed as under :-
"10. In the next place it must be borne in mind that there is no
rule, with regard to certiorari as there is with mandamus, that it
will lie only where there is no other equally effective remedy. It is
well established that, provided the requisite grounds exist,
certiorari will lie although a right of appeal has been conferred by
statute, (Halsbury's Laws of England, 3rd Edn., Vol. 11, p. 130 and
the cases cited there). The fact that the aggrieved party has
another and adequate remedy may be taken into consideration by
the superior court in arriving at a conclusion as to whether it
should, in exercise of its discretion, issue a writ of certiorari to
quash the proceedings and decisions of inferior courts subordinate
to it and ordinarily the superior court will decline to interfere until
the aggrieved party has exhausted his other statutory remedies, if
any. But this rule requiring the exhaustion of statutory remedies
before the writ will be granted is a rule of policy, convenience and
discretion rather than a rule of law and instances are numerous
where a writ of certiorari has been issued in spite of the fact that
the aggrieved party had other adequate legal remedies."
17. The issue of exercising jurisdiction under Article 226 of
the Constitution of India, when an alternate remedy is available
has been a subject matter before the Supreme Court in the case of
Whirlpool Corporation Vs. Registrar of Trade Marks Mumbai 5 and
the also very recently in the case of Godrej Sara Lee Limited
(supra) wherein, the principles laid down in the case of Whirlpool
Corporation (supra) for exercising the jurisdiction under Article
226 of the Constitution of India have been reiterated on the
ground of challenge to the very jurisdiction and principles of
5 (1998) 8 SCC 1.
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natural justice.
18. For the reasons stated above, the impugned orders dated
8th March 2021 and 6th July 2021 are hereby quashed and aside.
Since order has been passed in excess of the jurisdiction
conferred by Section 25 of the MVAT Act and further the
impugned order being beyond the show cause notice, the petition
is required to be allowed in terms of prayer clauses (a), (b) and
(c). No order as to costs.
[JITENDRA JAIN, J.] [G. S. KULKARNI, J.]
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