2016 (3) TMI 3 - HC - VAT and Sales Tax

Condition of pre-deposit under section 62(5) of the PVAT - Whether unreasonable, arbitrary, discriminatory and ultra vires Articles 14 and 19(1)(g) of the Constitution of India? - Held that - even when no express power has been conferred on the first appellate authority to pass an order of interim injunction/protection, in our opinion, by necessary implication and intendment in view of various pronouncements and legal proposition expounded above and in the interest of justice, it would essentially be held that the power to grant interim injunction/protection is embedded in Section 62(5) of the PVAT Act. Instead of rushing to the High Court under Article 226 of the Constitution of India, the grievance can be remedied at the stage of first appellate authority. - Matter remanded back.

Summary

Issues:
1. Challenge under section 68 of the Punjab Value Added Tax Act, 2005 against the order of the Value Added Tax Tribunal for the assessment year 2009-10.
2. Questions of law related to the reasonableness of the pre-deposit condition under section 62(5) of the PVAT Act and the jurisdiction of the High Court to waive such condition.

Issue 1: Challenge under section 68 of the Punjab Value Added Tax Act, 2005
The appellant-assessee challenged the order of the Value Added Tax Tribunal for the assessment year 2009-10 under section 68 of the Punjab Value Added Tax Act, 2005. The appellant, engaged in developing land and constructing properties for sale, faced a demand of Rs. 80,67,170 with penalties and interest. Various assessment orders and appeals were made, leading to the Tribunal dismissing the appeal, prompting the appellant to approach the High Court.

Issue 2: Questions of law related to pre-deposit condition under section 62(5) of the PVAT Act
The substantial questions of law raised by the appellant focused on the reasonableness, arbitrariness, and constitutionality of the pre-deposit condition under section 62(5) of the PVAT Act. Additionally, the jurisdiction of the High Court to waive such a condition was a point of contention. The appellant sought clarification on whether the High Court could intervene to waive the pre-deposit requirement under section 62(5) of the PVAT Act.

The High Court, in its judgment, noted that the issue at hand had been previously addressed in a similar case, Punjab State Power Corporation Limited vs. The State of Punjab and Others. The court concluded that the first appellate authority had the power to grant interim protection or injunction, even if not explicitly mentioned, and could waive the pre-deposit condition under section 62(5) of the PVAT Act in deserving cases. The court emphasized that such power should not be exercised routinely but only in cases where a strong prima facie case was established, ensuring that the purpose of the appeal was not frustrated.

Based on the precedent set in the aforementioned case, the High Court set aside the orders of the DETC(A) and the Tribunal. The court directed the first appellate authority to decide the appellant's application for waiver of the pre-deposit amount in accordance with the law and the principles outlined in the Punjab State Power Corporation Limited case. Consequently, the appeal was disposed of, and the first appellate authority was instructed to review the appellant's request for waiver of the pre-deposit amount under section 62(5) of the PVAT Act.