Bombay High Court
Jk Surface Coatings Private ... vs The State Of Maharashtra Through ... on 20 February, 2023
Bench: Nitin Jamdar, Abhay Ahuja
37-WP(ST)-1194-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST.) NO. 1194 OF 2021
JK Surface Coatings Private Limited )
and Another )...Petitioners
V/s.
The State of Maharashtra and Others )...Respondents
Mr. Rahul Thakar a/w. Mr. Chandrakant B. Thakar, Advocate
for the Petitioners.
Smt. S.D.Vyas, "B" Panel Counsel for the Respondent-State.
CORAM : NITIN JAMDAR AND
ABHAY AHUJA, JJ.
DATE : 20 FEBRUARY 2023
P.C.
This Petition is one of those Petitions where the sole
attempt of the Petitioner is to avoid pre-deposit as mandated
under Section 26 (6A) of the Maharashtra Value Added Tax
Act, 2002 (the "MVAT Act"). Writ invoking jurisdiction inspite
of alternate remedy for the sole purpose to secure interim
ARTI VILAS
AVK 1/4
KHATATE
Digitally signed by
ARTI VILAS
KHATATE
Date: 2023.02.22
21:36:18 +0530
37-WP(ST)-1194-2021.doc
orders, has been deprecated by the Hon'ble Supreme Court in
the decision of United Bank of India vs. Satyawati Tondon &
Ors.1, albeit in the context of Securitisation and Reconstruction
of Financial Assets and Enforcement of Security Interest Act,
2002 (the "SARFAESI Act"). The attempt of the Petitioner in
this case is only to somehow keep the proceeding pending.
2 The Petitioner filed this Petition for a declaration that
Section 26 (6A) of the MVAT Act which mandates pre-deposit
for entertaining an Appeal is unconstitutional. The Writ
Petition was filed on 14 January 2021 and it has been pending
since then since the issue was referred for the consideration of
the Full Bench which fact is mentioned in the order dated 5
February 2021 granting interim protection to the Petitioner.
The Full Bench, in the case of United Projects vs. The State of
Maharashtra and Anr.2 rendered its decision on 12 July 2022
and held that the provision is valid.
3 Since limitation is prescribed for filing an Appeal, we
would have expected that after the Full Bench decision was
rendered and the sole purpose for which the Petition is
pending for last two years with an interim order, that the
Petitioner would then file an Appeal. Now, what is sought to
1 AIR 2020 SC 3413
2 Writ Petition No.2883 of 2018 with connected Writ Petitions
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37-WP(ST)-1194-2021.doc
be argued is that there has been breach of principles of natural
justice, and therefore, writ jurisdiction should be invoked. It is
not that it is impermissible to raise such contention, but the
breach of principle of natural justice must be on the face of it
and cannot be intermixed with merits of the case, as this
ground can be urged before the Appellate Authority.
4 The learned Counsel for the Petitioner sought to contend
that in the impugned order there are no reasons given and the
submissions of the Petitioner have not been considered. Also it
is wrongly recorded that none appeared for the last hearing
and books of accounts have been submitted partially.
5 There is no mention in the CGST Rules the assessment
order need not be like a judgment. Secondly, there is a
reference of attendance of Mr. Rajendra Parab (V.P. Finance) of
the Petitioner. The reference of non- attendance as to the
earlier hearing and even assuming that there is an error in
entertaining so, it is clear from the order that there was
representation on behalf of the Petitioner. Infact, the
Petitioner had addressed a communication to the authorities on
11 November 2019 to go ahead and complete the assessment
on the basis of the information provided. Whether the
documents were partial or complete and that the impugned
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37-WP(ST)-1194-2021.doc
order was correct or otherwise are all arguments that can be
advanced in the Appeal that is available to the Appellant which
the Appellant ought to have exhausted atleast after the
decision of the Full Bench.
6 In light of this position, we decline to exercise our writ
jurisdiction. The Writ Petition is rejected.
(ABHAY AHUJA, J.) (NITIN JAMDAR, J.)
AVK 4/4
