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TMI Blog2015 (7) TMI 1289X X X X Extracts X X X X X X X X Extracts X X X X ..... s not raise any substantial question of law, as the concurrent orders do not suffer from a serious legal infirmity or perversity - appeal dismissed. - MVXA TAX APPEAL NO.10 OF 2015 IN VAT APPEAL NO.178 OF 2014 - - - Dated:- 28-7-2015 - S.C. DHARMADHIKARI G.S. KULKARNI, JJ. Mr. C.B. Thakar, for the Appellant. Mr. B.B. Sharma, AGP for the Respondent-State. P.C. : 1. This appeal by the dealer Lalbaugcha Raja Sarwajanik Ganeshotsav Mandal questions the order passed by the Maharashtra Sales Tax Tribunal in an appeal being VAT Appeal no.178 of 2014. 2. By the order delivered on 26.11.2014 the Tribunal proceeded to dismiss the said appeal and confirmed the order passed by the Commissioner of Sales Tax, Maharashtra State, Mumbai dated 30.12.2013. 3. Mr. Thakar, learned Counsel appearing on behalf of the appellant dealer submits that two questions at pages 6 and 7 are the substantial questions of law. This is a VAT appeal and the power of this Court under Section 27 of the Maharashtra Value Added Tax Act,2002 has been invoked so as to question these concurrent views. 4. Our attention has been invited to the Maharashtra Value Added Tax Act,2002 and it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39; in the following words: 2. Definitions: In this Act, unless the context otherwise requires, .... ....... .... (8) 'dealer' means any person who, for the purposes of or consequential to his engagement in or, in connection with or incidental to or in the course of, his business buys or sells, goods in the State whether for commission, remuneration or otherwise and includes, (a) a factor, broker, commission agent, delcredere agent or any other mercantile agent, by whatever name called, who for the purposes of or consequential to his engagement in or [in connection with or incidental to or] in the course of the business, buys or sells any goods on behalf of any principal or principals whether disclosed or not; (b) [an auctioneer who sells or auctions goods whether acting as an agent or otherwise or, who organises the sale of goods or conducts the auction of goods whether or not he has the authority to sell the goods] belonging to any principal whether disclosed or not and whether the offer of the intending purchaser is accepted by him or by the principal or a nominee of the principal; (c) a non-resident dealer or as the case may be, an agent, res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act,1988 (59 of 1988), which are used or adopted to be used for hire or reward shall not be deemed to be a dealer within the meaning of this clause in respect of sale or purchase of such transport vehicles or parts, components or accessories thereof. 6. A bare reading of this provision and the definition would indicate that the dealer includes and at least with effect from 1.4.2005 an auctioneer who sells or auctions goods whether acting as an agent or otherwise or, who organises the sale of goods or conducts the auction of goods whether or not he has the authority to sell the goods. Thus, the bracketed words were brought in by the Maharashtra Act 14 of 2005 with effect from 1.4.2005. 7. By the very Act the explanation below the subclauses came to be amended and by insertion of clause (iva) with effect from the same date. Now the deeming fiction would make a person like the appellant, even if it is a public charitable Trust, be a dealer. That is an unambiguous position. 8. Mr.Thakar does not dispute that the appellant Mandal organizes or conducts auction of all the valuable jewellary / articles and offered by the devotees during the festival. The devotees make a l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, or (c) any particular thing done to any goods amounts to or results in the manufacture of goods, within the meaning of that term, or (d) any transaction is a sale or purchase, or whether it is a sale or purchase, the sale price or the purchase price, as the case may be, thereof, or (e) in the case of any person or dealer liable to pay tax, any tax is payable by such person or dealer in respect of any particular sale or purchase, or if tax is payable, the rate thereof, or (f) setoff can be claimed on any particular transaction of purchase and if it can be claimed, what are the conditions and restrictions subject to which such setoff can be claimed, the Commissioner shall, subject to rules, make an order determining such question. Explanation For the purpose of this subsection, the Commissioner shall be deemed to have commenced assessment of the dealer under section 23 when the dealer is served with any notice by the Commissioner under that section. (2) The Commissioner may direct that the determination shall not affect the liability under this Act of the applicant or, if the circumstances so warrant, of any other person similarly situated, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and reasonable so also sub-serving the larger public interest. The highest officer in the hierarchy is chosen by the legislature as there is a presumption that this executive functionary will exercise the discretion in genuine and bonafide cases. He must be satisfied that there is a real need and the circumstances warrant exercise of the same. The power being wide the satisfaction must be backed by cogent and strong reasons which can be tested in a Court of law. 12. The words are of wide amplitude and if the Commissioner exercises the discretion injudiciously or arbitrarily and contrary to the object and purpose sought to be achieved by the enactment itself, his exercise of the discretionary power is always capable of being questioned. Therefore, when the Commissioner finds that there was never a disputed question to be determined and the law is very clear and free of doubt, equally its applicability, then, refusal by the Commissioner to exercise the discretion is rightly upheld by the Tribunal. Just as the Commissioner was obliged to assign reasons for not exercising his discretionary power equally the Tribunal was in upholding his order. The Tribunal in paragraph 22 of its o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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