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2020 (8) TMI 690 - HC - VAT and Sales TaxDetermination of mandatory pre-deposit for admission of an appeal - adjustment of deposit with input tax credit (ITC) / Net credit - HELD THAT - The Act requires a pre-deposit as per the language in the proviso(2) of sub-Section (1) of Section 31 of the Act and does not permit any adjustments - No authority is cited by the petitioner in support of petitioner s contention that adjustment of any net credit of tax is required to be made by the appellate authority while considering any appeal filed under Section 35 of the Act - Petition dismissed. Time Limitation - It is contended that by the time petitioner realized that an appeal needs to be filed, the limitation period of 30 days prescribed for filing the appeal under sub-Section (1) of Section 31 of the Act had expired - HELD THAT - Much case law has been referred to, in the affidavit filed in support of the writ petitions taking the plea relating to the validity of omission of the proviso(1) to Section 31(1) of the Act and it is contended that pending adjudication of the said issue, the garnishee order issued by the 1st respondent on 16.03.2020 should be suspended, and the penalty order passed by the 1st respondent on 25.09.2019 in AO.No.43687 should also should be set aside. Maintainability of appeal - HELD THAT - The petitioner had a remedy of appeal under sub-Section (1) of Section 31 of the Act against the penalty order dt.25.09.2019 passed by the 1st respondent; and the petitioner did not avail of the remedy at all; and the case of the petitioner does not fall within any of the exceptions to the rule permitting entertainment of writ petitions under Article 226 of the Constitution of India in spite of existence of an alternative remedy, and therefore we are not inclined to entertained the Writ Petition. Petition dismissed.
Issues Involved:
1. Disallowance of input tax credit by Commercial Tax Department. 2. Rejection of appeal by the 4th respondent. 3. Imposition of penalty by the 1st respondent. 4. Validity of the omission of the 1st proviso to Section 31(1) of the Act. Issue 1: Disallowance of Input Tax Credit: The petitioner, a cooperative organization, challenged the disallowance of input tax credit by the Commercial Tax Department. The Tribunal remanded the case for fresh assessment, leading to a reassessment order disallowing a portion of the credit. The petitioner failed to deposit the required amount for appeal, leading to rejection by the 4th respondent. The Court held that the petitioner was obligated to make the deposit, and no adjustment or credit could be claimed. The appeal was dismissed based on non-compliance. Issue 2: Rejection of Appeal: The petitioner contested the rejection of the appeal by the 4th respondent, arguing that the deposit requirement should have been adjusted against a net credit carry forward amount. However, the Court emphasized the statutory requirement of the deposit and dismissed the appeal, stating that no adjustments were permitted under the Act. The Court found no merit in the petitioner's contentions and upheld the rejection of the appeal. Issue 3: Imposition of Penalty: Regarding the penalty imposed by the 1st respondent, the petitioner claimed that the order was barred by limitation and challenged the omission of the 1st proviso to Section 31(1) of the Act. The Court noted that the petitioner failed to file an appeal within the prescribed period, rendering the challenge to the omission irrelevant. The Court held that the petitioner had the remedy of appeal but did not avail of it, leading to the dismissal of the writ petition. Issue 4: Validity of Omission of Proviso: The petitioner raised concerns about the validity of the omission of the 1st proviso to Section 31(1) of the Act. The Court observed that the petitioner's failure to file an appeal within the statutory period rendered the challenge moot. The Court declined to entertain the writ petition, emphasizing the availability of the remedy of appeal under the Act. In conclusion, both writ petitions were dismissed by the Court, with no costs imposed. The Court highlighted the importance of compliance with statutory requirements and the availability of appeal remedies under the law.
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