Madhya Pradesh High Court
Kavyaa Industries Pvt Ltd ... vs Commercial Taxes Department on 31 March, 2021
Author: Sujoy Paul
1 WP-4224-2021
The High Court Of Madhya Pradesh
WP-4224-2021
(KAVYAA INDUSTRIES PVT LTD FORMERLY NAMED NISARG BEVARAGES PVT LTD THROUGH SHRI
ANIL TURAKHIA Vs COMMERCIAL TAXES DEPARTMENT)
6
Indore, Dated : 31-03-2021
Shri Ashish Goyal, learned counsel for the petitioner.
Shri Pushyamitra Bhargava, learned Addl. Advocate General for
respondent/State.
With the consent finally heard.
[2]. Learned counsel for the petitioner at the outset submits that
petitioner preferred an appeal against the impugned order dated 21.9.2020
(Annexure P/1), before the statutory appellate forum. However, petitioner did
not deposit the requisite 5% of the disputed amount because of which his
appeal was not entertained and the appellate authority passed the order dated
19.3.2021. Shri Goyal, learned counsel for the petitioner undertakes to file the
said document during the course of the day.
[3]. By placing reliance on a Division Bench judgment of the Gujarat
High Court in the case of Bhavya vs. Union, decided on 1.12.2011, learned
counsel for the petitioner submits that petitioner has already been declared as
NPA. His financial health is very bad. Petitioner in this pandemic era is not
able to deposit the said amount.
[4]. Learned counsel for the petitioner submits that the petitioner
attended the hearing before the Divisional Deputy Commissioner on few
dates, but counsel could not remain present because of pandemic on a
subsequent date. Shri Goyal, learned counsel made a statement before the
Court that on the particular date, when the matter was fixed before the said
authority, the area in which petitioner's counsel was residing was declared as
"Containment Zone". This prevented the petitioner's counsel to remain
present in the hearing.
[5]. Considering the aforesaid, the petitioner may be permitted to
pursue his appeal without permitting the petitioner to deposit the aforesaid
Digitally signed by SHAILESH
MAHADEV SUKHDEVE
Date: 31/03/2021 18:12:32
2 WP-4224-2021
amount of 5%.
[6]. The prayer is opposed by Shri Pushyamitra Bhargava, learned
Addl. Advocate General for the respondent/State.
[7]. We have heard the parties at length and perused the record.
[8]. The Division Bench of the Gujarat High Court in the case of
Bhavya vs. Union, has opined as under :-
"In the present case we are confronted with a situation
where huge duty demand and penalty is imposed against the
petitioners by the adjudicating authorities. First appeal against
such an order though filed by the petitioner stands terminated
today on account of failure to meet with pre-deposit requirement.
It is the case of the petitioners that financial condition of the
company would simply not enable the company to deposit sum as
large as Rs.1.7 Crores. If such condition is insisted upon strictly,
appeal of the petitioners would be dismissed without hearing.
We have perused the balance sheet of the company placed
on record. Year after year company continued to incur huge loss.
Balance - sheet suggests that there is no manufacturing or other
activity being undertaken by the company and with each
successive year, accumulated loss swell. In fact net profit of the
company is negative since long. All these would demonstrate that
the petitioners have no means of fulfilling the pre-deposit
condition. If no respite is granted to the petitioners, their first
appeal before the Tribunal would be rendered infructuous. In
special facts of this case and also looking to the stand of the
petitioners that they are not seeking any stay against the duty
and penalty demands, but requesting for the appeal being heard
on merits without any pre-deposit, we are inclined to waive entire
pre-deposit requirement."
[emphasis supplied]
Digitally signed by SHAILESH
MAHADEV SUKHDEVE
Date: 31/03/2021 18:12:32
3 WP-4224-2021
[9]. Considering the aforesaid judgment and more particularly
considering the inability of petitioner to remain present on the particular date
because of pandemic related problem, in the peculiar facts of this case, we
deem it proper to permit the petitioner to prosecute his appeal without
depositing the requisite amount. This order is passed in the peculiar facts of
this case, which will not be treated as precedent in future.
[10]. Accordingly, the petitioner is relegated to avail the remedy of
appeal. The appeal of the petitioner is restored to its original number. The
appellate authority shall decide the appeal in accordance with law, without
dismissing the appeal for not depositing the requisite 5% amount. An
endeavour shall be made to decide the appeal expeditiously, preferably, within
30 days.
[11]. The petitioner is permitted to prosecute his appeal without asking
for any stay in the appellate proceedings.
[12]. The petition is disposed of without expressing any opinion on
merits of the case.
(SUJOY PAUL) (SHAILENDRA SHUKLA)
JUDGE JUDGE
SS/-
Digitally signed by SHAILESH
MAHADEV SUKHDEVE
Date: 31/03/2021 18:12:32
