Bombay High Court
Priyanka Motors vs State Of Maharashtra on 30 June, 2025
Author: M. S. Sonak
Bench: M.S. Sonak
2025:BHC-AS:26674-DB 20-ASWP-8704-2025.DOCX
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8704 OF 2025
Priyanka Motors ...Petitioner
Versus
State of Maharashtra & Ors ...Respondents
Mr Sriram Sridharan, for the Petitioner.
Ms Shruti Vyas, Addl. GP, with Aditya R Deolekar, AGP, for the
Respondent-State
CORAM M.S. Sonak &
Jitendra Jain, JJ.
SHEPHALI DATED: 30th June 2025.
SANJAY
MORMARE
Digitally signed by
SHEPHALI SANJAY
ORAL JUDGMENT (Per M. S. Sonak, J.):
MORMARE
Date: 2025.07.04
11:54:36 +0530
1. Heard learned counsel for the parties.
2. Rule. The rule is made returnable immediately at the
request and with the consent of the learned counsel for the
parties.
3. The Petition challenges the order dated 29th August
2024 made by the Maharashtra Sales Tax Tribunal, Mumbai
("Tribunal") dismissing the Petitioner's Appeal on the ground
of the absence of the Consultant and the order dated 24th
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20-ASWP-8704-2025.DOCX
October 2024 declining the restoration of the Petitioner's VAT
Second Appeal No. 219 of 2023.
4. Mr Sridharan, learned counsel for the Petitioner, submits
that under Section 26(5)(a) of the Maharashtra Value Added
Tax Act, 2002 ("MVAT"), the Tribunal has no power to dismiss
an Appeal for default or non-prosecution but must decide the
matter on its merits. He relies on the M/s. National Building
Construction, Nagpur & Anr vs State of Maharashtra & Ors 1
and Balaji Steel Re-rolling Mills vs Commissioner of Central
Excise and Customs.2
5. In paragraphs 6 and 7 of the National Building
Construction (Supra), a coordinate Bench of this Court after
quoting Section 26(5)(a), made the following observations:
"6. The provisions of Section 26(5)(a) of the
Maharashtra Value Added Tax Act, 2002, read as under -
"26. Appeals
(5) Subject to such rules of procedure as may be
prescribed, every appellate authority (both in the first
appeal and the second appeal) shall have the following
powers, namely:-
(a) in an appeal against an order of assessment, it
may confirm, reduce, enhance or annual the assessment.
Provided that, where the appeal is filed before the
Tribunal, the Tribunal may set aside the assessment and
refer the case back to the assessing authority for making a
fresh assessment in accordance with the direction given
by it and after making such further inquiry as may be
necessary; the assessing authority shall thereupon proceed
2024 (11) TMI 198, Bombay High Court.
(2014) 16 SCC 360.
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20-ASWP-8704-2025.DOCX
to make such fresh assessment and determine, where
necessary, the amount of tax payable on the basis of such
fresh assessment;"
7. It is a settled position of law, that between a
Statute and a Rule, it is the Statute, which has primacy
and therefore, prevails upon the Rule. In that view of the
matter, while deciding the appeal, the Authority will have
to be governed by the mandate of Section 26(1)(a) of the
Maharashtra Value Added Tax Act and decide the appeal
in the manner as indicated therein, the Rule being
subservient to it. The position in this regard has been
considered in Balaji Steel Re-rolling Mills v. Commissioner
of Central Excise and Customs, (2014) 16 SCC 360 in
which considering similar provisions as contained in the
Central Excise Act and Rule 20 of the Rules framed
thereunder, which provided for dismissal of an appeal on
account of the absence of the petitioner, it has been held
that the substantive provisions of the Act would prevail
and would be the manner in which the appeal has to be
decided."
6. Given the above legal position, the Tribunal could not
have dismissed the Petitioner's Second Appeal on the ground
of absence of the Petitioner's Advocate/ Consultant or for non-
prosecution. The Tribunal was obliged to decide the Second
Appeal in the manner indicated in Section 26(5)(a), i.e., on
merits. This having not been done, the impugned orders are
liable to be set aside, and we do hereby set aside the same.
7. In National Building Construction (Supra), in similar
circumstances, the Petition was allowed, subject to the
petitioner paying the costs. In this matter as well, we are
allowing this Petition subject to the Petitioner paying costs of
Rs. 25,000/- to the Bar Council of Maharashtra and Goa
within four weeks from the date of uploading of this order
and filing a proof of payment to be filed in the Registry. If
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costs are not paid within the time indicated, this Petition shall
be deemed dismissed without further reference to this Court.
8. If costs are paid, the restored Appeal will have to be
decided on merits by the Tribunal. We clarify that we have not
adverted to the rival contentions on merits because those are
for the Tribunal to consider.
9. The Rule is made absolute with costs as indicated above.
10. All concerned are to act on an authenticated copy of
this order.
(Jitendra Jain, J) (M. S. Sonak, J)
{
30th June 2025
