Mahesh Electronics vs State Of Gujarat
2022 Latest Caselaw 2345 Guj

     C/SCA/4133/2022                             JUDGMENT DATED: 02/03/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 4133 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J.B.PARDIWALA

and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
==========================================================

1     Whether Reporters of Local Papers may be allowed                NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                         NO

3     Whether their Lordships wish to see the fair copy               NO
      of the judgment ?

4     Whether this case involves a substantial question               NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                          MAHESH ELECTRONICS
                                 Versus
                           STATE OF GUJARAT
==========================================================
Appearance:
UCHIT N SHETH(7336) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR UTKARASH SHARMA AGP for the Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
          and
          HONOURABLE MS. JUSTICE NISHA M. THAKORE

                             Date : 02/03/2022

                     ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. Rule returnable forthwith. Mr. Utkarsh Sharma, the learned AGP waives service of Rule for and on behalf of the respondents.

C/SCA/4133/2022 JUDGMENT DATED: 02/03/2022

2. By way of this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:

"A. This Hon'ble Court may be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ or order quashing and setting aside order dated 13.2.2020 (annexed at Annexure A) passed by the Tribunal and the matter may please be restored to the file of the Tribunal for hearing on merits;

B. This Hon'ble Court may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ or order restraining coercive recovery for the year 2011-12 under the Vat Act till disposal of appeal by the Tribunal.

C. This Hon'ble Court may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ or order directing the Respondents to grant refund of RS.20,16,747 coercively recovered from the petitioner despite stay order of the Tribunal for the year 2015-16 along with appropriate interest on such refund;

D. Pending notice, admission and final hearing of this petition, this Hon'ble Court may be pleased to restrain the respondent from making coercive recovery under the Vat Act concerning the subject matter of the present petition and the bank attachments may pleased be ordered to be released;

E. Ex parte ad interim relief in terms of prayer D may kindly be granted;

F. Such further relief(s) as deemed fit in the facts and circumstances of the case may kindly be granted in the interest of justice for which act of kindness your petitioner shall forever pray. "

3. We have heard Mr. Uchit Sheth, the learned counsel appearing for the writ applicant and Mr. Utkarsh Sharma, the

C/SCA/4133/2022 JUDGMENT DATED: 02/03/2022

learned AGP appearing for the State respondent.

4. The facts of this case are quite peculiar. The writ applicant on his own could be said to have put himself in a precarious situation.

5. The writ applicant was assessed to tax under the VAT Act for the year 2011-12. A demand was raised of tax with penalty. The Assessment order dated 29.03.2012 for the year 2011-12 is at page 15 of the paper book, Annexure B. The final liability as determined in the assessment proceedings is as under:

"Working out the amount of undisclosed sales to Rs.1,56,63,524/- by adding Rs.78,31,762/- in the amount of the stock difference being Rs.78,31,762/- at the rate of 100%, the total payable tax has been figured out to Rs.58,73,822/-, comprising Rs.23,49,529/-, the tax at the rate of 15%, including Rs.19,57,941/-, the tax at the rate of 12.5% and Rs.3,91,588/-, additional tax at the rate of 2.5% on Rs.1,56,63,524/- and Rs.35,24,293/-, the penalty at the rate of 150% on Rs.1,56,63,524/- under Section-34(7). Since the merchant has not paid any tax, the final due amount remains is Rs.58,73,822/-. The merchant be informed by issuing demand notice for the same."

6. It appears that the assessment order dated 29.03.2012 referred to above came to be challenged by filing an Appeal before the First Appellate Authority. The First Appeal was ordered to be summarily dismissed on the ground of non-payment of pre-deposit. The Second Appeal filed by the writ applicant before the Tribunal came to be allowed and the matter was remitted to the First Appellate Authority with a direction that the Appeal to be decided on merits on pre-deposit of Rs.4,60,000/-.

C/SCA/4133/2022 JUDGMENT DATED: 02/03/2022

7. The First Appeal was ultimately was heard on merits and it came to be partly allowed vide order dated 04.08.2018.

8. The writ applicant being dissatisfied with the order passed by the First Appellate Authority went before the Tribunal by way of Second Appeal. The Tribunal demanded further pre-deposit of Rs.2 Lakh. The writ applicant deposited the amount of Rs.2 Lakh so that its Second Appeal could be heard on merits.

9. While the Second Appeal was pending for hearing before the Tribunal, the Government of Gujarat declared the Vera Samadhan Yojna - 2019 by way of the Resolution dated 11.09.2019. The said Resolution later was superseded by new Resolution dated 06.12.2019 and the scheme was named as Vera Samadhan Yojna

- 2019.

10. One of the conditions to avail the benefit of the scheme was that if any Appeal was pending on the date, when the dealer would apply for the scheme, such appeal should have been withdrawn. In such circumstances referred to above, the writ applicant herein requested the Tribunal to permit him to withdraw the Appeal. The Tribunal vide order dated 13.02.2020 permitted the writ applicant to withdraw the Second Appeal. The operative part of the order reads thus:

"Order The appellant is permitted to withdraw the present Second Appeal No.441 of 2019 to join the Amnesty Scheme - 2019, with liberty to file Restoration Application in case of application is rejected by Authority within one month. It is further directed that once application of appellant is accepted by the Authority for the Amnesty Scheme - 2019 and thereafter, if appellant fails to comply or fails to fulfill the condition of the

C/SCA/4133/2022 JUDGMENT DATED: 02/03/2022

Amnesty Scheme - 2019, then appellant will not be at liberty to file Restoration Application. Any Relief granted earlier is hereby vacated with immediate effect. According the present Second Appeal stands disposed off as withdrawn with no order as to costs."

11. Today, the writ applicant is in a fix. He is here before this Court because he has not been able to avail the benefit of the scheme and at the same time, his Second Appeal before the Tribunal has also gone. However, we should take notice of the fact that for the purpose of availing the benefit under scheme, the writ applicant was obliged to deposit an amount of Rs.21 Lakh. However, the payment of only Rs.10 Lakh was made. Since the writ applicant failed to make the requisite deposit of the amount, the writ applicant was not in a position to avail the benefits of the Scheme.

12. In view of the aforesaid, the only option now left for the writ applicant is to get his appeal which was once filed before the Tribunal heard on merits. However, the order passed by the Tribunal referred to above is coming in the way of the writ applicant.

13. We take notice of the fact that the order passed by the Tribunal is dated 13.02.2020. Prima facie, it appears that on account of the Covid Pandemic lockdown, the writ applicant was not in a position to make full payment and availed the benefit of the scheme.

14. In the peculiar facts and circumstances of the case and considering that the litigant should not be left remedy less, we quash and set aside the order passed by Tribunal dated 13.02.2020 in Second Appeal No.441 of 2019 and direct the

C/SCA/4133/2022 JUDGMENT DATED: 02/03/2022

Tribunal to restore the Second Appeal No.441 of 2019 to its original file and hear the same on its own merits and dispose of the same within a period of three months from the date of the receipt of the writ of this order.

The Tribunal shall now not insist for any pre-deposit for the purpose of hearing the Appeal on merits because an amount of Rs.10 Lakh was deposited by the writ applicant for the purpose of availing the benefit of the scheme and we are informed that an additional amount of Rs.20 Lakh was debited from the bank account of writ applicant to the Government Treasury.

In view of the aforesaid, this writ application stands disposed of. Rule is made absolute. Direct service is permitted.

(J. B. PARDIWALA, J)

(NISHA M. THAKORE,J) Y.N. VYAS