Bombay High Court
Nircon Construction vs The State Of Maharashtra Through ... on 9 October, 2023
Bench: G. S. Kulkarni, Jitendra Shantilal Jain
2023:BHC-OS:11624-DB
10-wp 2787-19@ia 1289-19.odt
Prajakta Vartak
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2787 OF 2019
WITH
INTERIM APPLICATION NO. 1289 OF 2019
Nircon Construction ..Petitioner
Versus
The State of Maharashtra & Ors. ..Respondents
__________
Mr. Prithviraj Chaudhari i/b. Sharon Patole for Petitioner.
Mr. Himanshu Takke, AGP with Ms. Jyoti Chavan, AGP for State.
__________
CORAM : G. S. KULKARNI &
JITENDRA JAIN, JJ.
DATE : OCTOBER 09, 2023
P.C.:
1. Learned counsel for the petitioner has brought to our notice an
order dated 26 July, 2022 passed by a co-ordinate Bench of this Court in
the petitioner's own case i.e. Writ Petition No. 2788 of 2019 and Writ
Petition No. 2789 of 2019.
2. In regard to the similar prayers as made in the said petitions, the
Division Bench of this Court has observed that the reliefs sought in the
petitions are covered by a judgment of Full Bench of this Court in Union
Projects v/s. The State of Maharashtra and Another, Writ Petition No.
2883 of 2018 decided on 12 July, 2022. The Division Bench in the said
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proceedings has passed the following order:-
"1 The reliefs sought in these petitions are covered by a
judgment of Full Bench of this Court pronounced on 12th 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 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 predeposit 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
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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.
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."
3. Learned counsel for the petitioner would fairly submit that the
present petition would also stand covered by the said order passed by this
Court in the petitioner's earlier writ petition (supra).
4. We accordingly dispose of this petition in terms of the order dated
26 July, 2022 passed by the co-ordinate Bench of this Court in the
petitioner's own case, as observed above. No costs.
5. Interim application would not survive. It is accordingly disposed of.
[JITENDRA JAIN, J.] [G. S. KULKARNI, J.]
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09 October, 2023
