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TMI Blog2024 (6) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... dissected or attempted to reconstruction of the BTA in the manner as done in the impugned order. When the reviewing authority intended to confine itself to the value assigned to the intangible assets as contained in Schedule 3.3 read with Section 3.3 and Section 2.5, the same has been borrowed / copied from the service tax demand notice in ad-verbatim manner. This is clear from the comparative extracts of the service tax demand notice and the extract of the impugned order and more particularly from perusal of paragraphs 13 to 26 and 30 to 31 of the impugned order when examined against paragraph 4, 5.1 to 5.4, 6.1 and 10 of the Service Tax demand notice, where the impugned order has clearly copied and pasted the findings and reasoning as contained in the service tax demand notice issued to the petitioner in regard to BTA. The amounts qua each of such intangible items as specified in Schedule 3.3 certainly could not have been regarded as the itemized amounts of sale price received by the petitioner on sale of goods, as would be understood in the usual course of business, much less considering that it is the sale of business in its entirety as comprehended under the BTA. For such reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort MVAT Act ) exercising the review jurisdiction. By the impugned order, respondent no. 2 has reviewed the order dated 16 March, 2015 passed by the assessing officer finalizing the petitioner s assessment for the financial year 2010-11. Consequent to the impugned order, a notice of demand dated 31 March, 2021 is issued to the petitioner under Section 32 of the MVAT Act, which is also assailed by the petitioner. 2. Thus, the primary question which arises for consideration in the present proceedings is as to whether the respondents in the facts of the case could tax sale of the petitioner s Base Domestic Formulation Business as a going concern (slump sale) under the provisions of the Maharashtra Value Added Tax Act, 2002. A. Facts:- 3. The facts as discerned from the petition are:- During the financial year 2010-11, the petitioner entered into a Business Transfer Agreement dated 21 May, 2010 (for short BTA ) with one M/s. Abbott Healthcare Pvt. Ltd. (for short Abbott Healthcare ) to sell, assign, transfer, convey and deliver to Abbott Healthcare the Base Domestic Formulations Business (comprised of Healthcare Solutions business and the mass market branded formulation (Truecare busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e s case in the review notice. In its reply, the petitioner inter alia contended that the itemized value of assets does not affect the nature of the transaction as a transfer of business . The petitioner also contended that transfer under BTA was in the nature of transfer of business as a going concern would not attract tax under the provisions of the MVAT Act, hence, it was not taxable. There were several other contentions raised on facts and law. 9. On such notice, a personal hearing was held by respondent no. 2 on 22 August, 2017 and 22 March, 2021 when the authorized representative of the petitioner made extensive submissions, on the basis of the case as made out in the petitioner's reply. Also, the representative of Abbott Healthcare was heard by teleconference. The petitioner also submitted a synopsis of its case under the petitioner's letter dated 22 March, 2021. 10. It is on such backdrop, respondent no. 2 passed the impugned order dated 31 March, 2021 and consequent thereto, issued the impugned notice under Section 32 of the MVAT Act wherein a demand of Rs. 2606,79,63,675/- (about Rs. 2606.79 Crs.) (including interest) was confirmed against the petitioner, on the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntroversy, also for such reason, this writ petition ought not to be entertained. 14. On merits of the petitioner s case, it is contended that initiation of an action for review of the assessment order dated 16 March, 2015 by issuing show cause notice and the order passed on the review proceedings and the consequent demand notice, are well within the jurisdiction of respondent No. 2 under the provisions of Section 25 of the MVAT Act, hence, it is not correct for the petitioner to contend that the proceedings are without jurisdiction or in excess of jurisdiction or they are on wrongful assumption of jurisdiction. Also the allegations of the petitioner that the impugned order is in violation of the principles of natural justice, is stated to be too casual for the reason that right from the issuance of show cause notice till the impugned order was passed, the petitioner was heard through its representative on a number of occasions. Hence, as sufficient opportunity of a hearing was afforded not only to the representative of the petitioner but also to the representative of Abbott Healthcare (transferee) whose advocate could not physically attend due to the spread of COVID in Delhi, he wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT, as held in the impugned order. The contention of the petitioner to the effect that the impugned order accepts the transaction to be a Business Transfer is denied, in contending that this would amount to an erroneous interpretation of the impugned order by the petitioner. The petitioner s contention that itemized valuation of the assets as transferred would not be relevant, when the sale of business was as a going concern is alleged to be untenable from the interpretation of legal materials and the reading of the document(s) as a whole. It is next contended that the agreement for sale and clauses therein are not consistent with the transaction of sale of business as a going concern for the reason that there are several clauses which provide for exclusion of assets in sale of business transaction, which according to the Revenue, is inconsistent with the petitioner's claim of the sale of business. Although part of sale of assets is coupled with transfer of right to use, the definition of sale in Section 2 (24) includes transfer of right to use as a deemed sale. It is next contended that the petitioner was served with show cause notice which clearly indicated that a deduction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sues, the review proceedings were being initiated. It is next contended that the petitioner's case that the impugned order is beyond the show cause notice cannot be sustained also for the reason that the petitioner had defended action of levy of tax on the transfer of Intellectual Property Rights and other intangible assets as is evident from copy of reply dated 05 May, 2017 and synopsis of submissions dated 22 March, 2021 of the petitioner. It is contended that the petitioner has not been taxed on the entire sale consideration of the business, as tax has been levied only on the value of Intellectual Property, and other intangible assets, for which a separate agreement was entered between the parties i.e. firstly the agreement dated 21 May, 2010 and thereafter the agreement dated 08 September, 2010 titled as Registered User Agreement and Trade Mark Licence Agreement . 21. It is next contended that although the agreement is titled as BTA, however in essence the agreement comprises of transfer of business and an agreement on the transfer of Intellectual Property Rights and other intangible assets in one agreement only. For such reason, the review authority has not taxed sale cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer but levied tax on part of the assets such as intellectual property rights along with other intangible assets separately agreed to be transferred with restrictions and limitations. 25. It is next contended that proposal to levy tax under service tax law or dropping the same partially has no bearing on the taxability under MVAT Act. In such context, it is contended that under the definition of business as defined by Section 2 (4) of the MVAT Act and the Explanation (iv) thereto provides that any transaction in relation to the commencement or closure of business shall be deemed to be transaction comprised in business. It is stated that the transfer of business in question is covered under the definition of business and liable to tax. That slump sales are not being exempted from tax under the GST regime, it is also liable to be taxed under the MVAT, however, liable to tax at NIL rate which means it is taxable. Illustratively, it is contended that the Tamil Nadu VAT Act provides for sale of business undertaking under Section 2 (41) as not liable to be included in turnover, but for such specific exclusion, it was liable to sales tax. 26. It is next contended that the BTA is a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of the transfer. Since 2010, the buyer alone is conducting such business. Hence, applying the settled principles of law, there can be no levy of VAT in respect of the transaction, subject matter of the agreement. In supporting such submission, reliance is placed on (i) Deputy Commissioner (C.T.), Coimbatore vs. K. Behanan Thomas (1976) SCC OnLine Mad 421, (ii) Commissioner of Sales Tax, Maharashtra State, Bombay vs. Sundardas Harjiwan (1986) SCC OnLine Bom 404, (iii) Premier Automobiles Limited vs. Income-tax Officer Anr. (2003) SCC OnLine Bom 1282, (iv) Coromandal Fertilisers Limited, Sec bad vs. State of A.P. Ors. (1998) SCC OnLine AP 615, (v) Ram Sahai vs. Commissioner S.T (1962) SCC OnLine All 232, (vi) Dy. Commissioner of Salestax vs. M.S. Dat Pathe (1985) SCC OnLine Ker. 105, (vii) M/s. Paradise Food Court vs, State of Telangana Ors. 2017-TIOL-2672-HC-AP-VAT and (viii) Triune Projects Pvt. Ltd. vs. Dy. Commissioner of Income-tax 2016-TIOL-2960-HC-DEL-IT. (iv) It is submitted that Schedule 3.3 of the agreement is formulated for a limited purpose, solely for the purposes of payment of stamp duty which is a requirement of law, and which does not in any way reflect that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under the BTA can be taken away or be different because of the mere temporary non-exclusive use allowed to achieve the principal objective of the business transfer. (vii) Such temporary/non-exclusive use does not derogate the agreement or the treatment of transfer of a business. (ix) It is submitted that the taxes sought to be imposed under the law are required to be levied on the true nature of the transaction. In such context it is submitted that it is well settled law that a composite and integrated contract cannot be vivisected to fasten a tax liability. In support of his submission, reliance is placed on the decision in Union of India Vs. Playworld Electronics Pvt. Ltd 1989(41) ELT 368 (S.C.) and The Commissioner, Central Excise Customs, Kerala v. M/s. Larsen Toubro Ltd. 2015 (8) TMI 749 (S.C.) . The impugned order thus being in excess of jurisdiction, is required to be quashed and set aside. In this context, reliance is also placed on the decision of the Supreme Court in Whirlpool Corporation vs Registrar Of Trade Marks, Mumbai Ors. 1998 (8) SCC 1 and the Assistant Commr.(Ct) Ltu And Anr vs Amara Raja Batteries Ltd. 2009 (8) SCC 209. (x) It is next submitted that the approa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A included various assets and allocation of cash consideration for the purpose of stamp duty. The opinion of the department, therefore, was that the petitioner (dealer), had bifurcated the consideration of the different assets and for such reason, although the transaction was not a slump sale, incorrectly the petitioner was granted benefit of a slump sale by the assessing officer. It is for such reason, it was proposed to review the assessment order. On such backdrop, it is submitted that in passing the impugned order dated 31 March, 2021, reviewing the original assessment order, the proposed basis of the review has been completely forsaken and an entirely new basis was adopted. It is submitted that this is clear from the fact that the impugned order proceeds on the basis of some of the intellectual property rights namely corporate name, corporate logo and goodwill being not permanently transferred, but were transferred only for a certain time period. It is hence submitted that such basis is distinct from the basis proposed in the notice seeking review dated 06 April, 2017. It is thus submitted that the petitioner was never put to a notice of the actual basis as found in the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nability of the impugned order. 31. It is next submitted that the impugned order and the impugned notice of demand are bad in law on the ground that there is no application of mind by the respondents for many reasons. In this context, it is submitted that the jurisdictional service tax authorities under the Finance Act, 1994 had also raised on the petitioner a service tax demand vide a notice dated 15 October, 2015, on identical issues as raised in the impugned order. The respondent authority had taken recourse to such order passed by the service authorities to the effect that the allegations from the service tax demand notice were verbatim copied as clearly seen from the impugned order. In this regard, a reference is made to paragraphs 13 to 26 and 30 to 31 of the impugned order, which when examined against paragraph 4, 5.1 to 5.4, 6.1 and 10 of the service tax order / demand notice would evidence that the impugned order has merely copied and pasted the findings and reasons from service tax proceedings. A comparative table to that effect is also placed on record to show the copying of the extract from the service tax demand notice. It is, therefore, submitted that the reviewing au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution of India. It is submitted that the petitioner intends to avoid pre-deposit of an amount of Rs. 15 crores as against the demand of Rs. 2607 crores. It is, therefore, submitted that the petition be dismissed on this count alone. ii. On the petitioner s contention that the impugned order is in violation of the principles of natural justice, it is submitted that it is not in dispute that the petitioner was heard by the Reviewing Authority before passing the impugned order. It is submitted that in fact the entire procedure as adopted by the respondent in adjudicating the review proceeding was lawful for the reason that a notice was issued to the petitioner and thereafter an opportunity was granted to the petitioner to respond to the notice, a personal hearing on the notice was given, and thereafter, the impugned order is passed. Hence, the contention that there is breach of principles of natural justice, ought not to be accepted. iii. On the petitioner s contention that the impugned order is beyond the scope of show cause notice, it is submitted that a plain reading of the show cause notice would demonstrate that the scope of the show cause notice was wide, which was inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Vikas Sales Corporation Vs. Commissioner of Commercial Taxes (1996) 102 STC 106. Also as per the Entry 39 of Schedule C of the MVAT Act, intangible or incorporeal rights as per the notification issued by the State Government are taxable. vi. It is next submitted that the contention of the petitioner that the transaction cannot be vivisected in regard to its different components as the transaction under BTA is a slump sale, also ought not to be accepted as levy of tax is on transfer of rights to use intellectual property for a limited period, is a transfer of right to use, which would be deemed to be a sale under the definition of sale as provided under Section 2 (24) of the MVAT Act. It is submitted that a levy of tax is on the transfer of rights to use intellectual property for a limited period, hence, it cannot be construed as a vivisection of the transaction, which is deemed to be a sale under Section 2 (24) of the MVAT Act. The agreement as a whole is to be read and to be interpreted, and if a portion of the transaction is liable to be taxed, there is no illegality in levying tax on that portion. vii. It is next submitted that sale of business as going concern is not taxable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) of the MVAT Act. As per Section 3 of the MVAT Act, the petitioner is a dealer and would be liable to pay tax till the petitioner s business certificate/licence is cancelled, as for a transaction of sale is liable to be taxed. Since on the date of the BTA, the certificate of the petitioner was not cancelled. ix. It is submitted that the case of the petitioner that the transaction of transfer is not in the course of business, it is submitted that since as per Section 2 (4) and Explanation (iv) below it, any transaction in connection with the commencement or closure of business shall be deemed to be a transaction comprised in a business. In this context, it is submitted that in the Tamilnadu Value Added Tax Act, the definition of turnover under Explanation (iii) excludes any amount realized by a dealer by way of sale of business as a whole, as it is not to be included in the turnover. However, in the MVAT there is no such exclusion. Further under the Income Tax Act, slump sale is liable to tax and treated as transfer of assets under Section 50B of the Income Tax Act as capital gains, arising from the transfer of long term capital assets. For such reason slump sale in question is li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture of the notice and in fact the petitioner at all material times was aware of such notice, hence, the show cause notice could not have been said to be a vague show cause notice. xv. In support of the above submissions, reliance is placed on the decision of the Supreme Court in the case of Vikas Sales Corporation Vs. Commissioner of Commercial Taxes (supra), a decision of the Bombay High Court in M/s Mestra A G Switzerland vs The State Of Maharashtra Ors. Writ Petition No. 12297 of 2021 (Aurangabad Bench) decided on 16/02/2022 and Hal Offshore Ltd vs The State Of Maharashtra Writ Petition No. 202 of 2020 decided on 15/06/2022; 34. We have heard learned counsel for the parties and with their assistance, perused the record. F. Analysis and Conclusion:- 35. As seen from the foregoing paragraphs, the case revolves around the BTA dated 21 May, 2010 entered by the petitioner to sell its domestic pharmaceutical business to Abbott Healthcare. Under the BTA, the petitioner had desired to sell, assign, transfer, convey and deliver to Abbott Healthcare the said business which comprised of the transferred assets as a going concern on a slump sale basis as defined under Section 2 (42C) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order proposed to be passed GIST While scrutinizing assessment record for F.Y. 2010-11 assessing authority has allowed transaction of sale of business of domestic and generic formulation to M/s. Abott Healthcare as slump sale along with assets and liabilities. However after perusal of business transfer agreement in general and Schedule 3.3 in particular it is noticed that the allocation of cash consideration for stamp duty purpose includes various types of assets as referred in schedule 3.3 annexed to the agreement. The dealer has bifurcated the consideration for Tangible immovable assets, Trademark Associate Rights, brandwise breakup, rights under exclusive distribution agreement, Trademark Licences, Business Transfer Agreement and non-stampable assets. Thus I have reason to believe that the claim of sale of business of domestic and generic formulation to M/s. Abott Healthcare as slump sale is incorrectly granted by assessing authority and such Turnover of sale has not been brought to tax and Liability to tax is understated . Hence I propose to review assessment for F.Y. 2010-2011 u/s. 25 of MVAT Act, 2002 for the issue raised above and other allied issues as revealed form the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale in the course of business ; (iii) the petitioner (noticee) does not qualify as a dealer as defined under Section 2(8) of the MVAT Act qua the sale under the BTA; (iv) there is a clear distinction between transfer of business vis- -vis closure of business ; (v) transfer under the BTA was in the nature of transfer of business as a going concern hence, it cannot fall under the definition of turnover of sales ; (v) that the itemized value of assets and liabilities as set out in the BTA does not affect nature of transfer of business as a going concern. 39. It is on the above premise, a hearing was held before the reviewing authority on the review proceedings. The petitioner was represented at such hearing, as also the representative of Abbott Healthcare appeared by teleconferencing. The petitioner also submitted a synopsis of its submissions, reiterating its contentions. The reviewing authority accordingly proceeded to pass the impugned order dated 31 March, 2021. In the impugned order, the basic premise on which it was decided to partly tax the sale of business under the BTA, was sought to be reached, was on two issues as set out at internal page no. 13 of the order which reads thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner's goodwill having been transferred to Abbott Healthcare temporarily for a fixed period, it amounted to sale of goods so as to be included in the sales turnover of the petitioner for the financial year in question. 41. Insofar as the second issue in regard to non-competition and non-solicitation clause of the BTA to be observed by the petitioner and its affiliates, as contained in Section 10.6 of the BTA, it was observed that the scrutiny of the BTA revealed that the agreement inter alia included non-competition and non-solicitation clause for a period of 8 years from the date of closure of agreement, it is not a case of sale of business as a slump sale. Further considering that the petitioner had maintained that the transaction involved under the BTA was a transfer of business and not a sale of goods and that the term transfer of business was not defined under the MVAT Act, therefore, the principles/criteria defining a transfer of business would be required to be culled out from various decisions which are dealt with the subject. Accordingly, considering the decisions of IBP Company Limited vs. Asstt. Commissioner Commercial Taxes 118 STC 33 State of Tamilnadu vs. TMT Dri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ack the proprietary rights after 9 months and 8 years, probably the dealer wants to continue in the business. (and has continued as PEL). Ideally, if the transfer of a business meets the conditions to be a Transfer of On Going Concern (TOGC), the seller may be required to deregister for VAT if it is no longer making any taxable supplies., (iii) There is sale in the course of business , as the proprietary rights intended to be kept as such, the transaction of sale of right to use of goods is in connection with or incidental to or in the course of business. Hence, all the essential conditions as pointed out by the dealer in his submissions are met. Whereas it appears that the provisions of Income Tax act, providing privileges to an assessee, not to declare the value of individual assets transferred in case of slump sale, is applicable only for observing other different provisions of the said Act only. The said taxation Act or any other such Act does not debar an assessee to follow the provisions of other taxation Acts. Accordingly, the Income Tax Act and the MVAT Act, 2002, being two different and independent taxation Acts, have separately their own provisions and they do not have an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t u/s. 52, if any 00.00 xi) Net balance dues, if any 26067963675.00 xii) Net refund, if any 00.00 2. Total amount of Rs. 2606,79,63,675.00 should be paid into Government Treasury at MUMBAI within 30 days from the date of service of this Demand Notice. 3. If you do not pay the amount by the date specified above, the amount will be recoverable as an arrears of land revenue under section 32 (5) of the Maharashtra Value Added Tax Act, 2002. 4. Total amount of Rs. 0 refundable. 5. Any appeal against the order must be presented to the Joint Commissioner of State Tax (Appeal-4)-6 GST Office, BKC Bandra, Mumbai within the time and in the manner laid down in section 26 of Maharashtra Value Added Tax Act, 2002. 45. On such conspectus, the petitioner is before the Court assailing the impugned review order passed by the respondents under Section 25 of the MVAT Act on the contentions as already noted by us. The primary contention as urged on behalf of the petitioner is to the effect that the impugned order is passed in excess of jurisdiction, as it seeks to artificially vivisect a business transfer which according to the petitioner, is impermissible in law, as also, on the ground that the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany, has executed and delivered to Purchaser the Piramal Group Undertaking set forth on Exhibit C pursuant to which the Piramal Enterprises Limited guarantees the performance of the obligations of Seller and its Affiliates pursuant to this Agreement and the Ancillary Agreements. .. ARTICLE 1 DEFINITIONS AND CONSTRUCTION . . ... Business means the business of researching, developing, formulating, manufacturing, selling, marketing, distributing, importing or exporting generic pharmaceutical products in finished form (including the Products and the R D Products) and related services of the base domestic formulations and mass market branded formulation (Truecare ) businesses of Seller and PHL Pharma Private Limited (including the divisions set forth on Exhibit E), as such businesses are conducted in India and any Emerging Market by Seller and PHL Pharma Private Limited immediately prior to the date of this Agreement (subject to any changes prior to the Closing permitted in accordance with Section 7.2), but specifically excluding the Other Businesses. It is agreed and understood that the Business does not include any Excluded Assets or Excluded Liabilities; . Intellectual Property mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, including any intent to use applications, supplemental registrations and any renewals or extensions, and other identifiers of source or goodwill, all other indicia of commercial source or origin and all goodwill associated with any of the foregoing; ARTICLE 2 AGREEMENT TO SELL AND PURCHASE Section 2.1 Purchase and Sale . At the Closing and subject to the terms and conditions of this Agreement, Seller shall sell, convey, assign, transfer and deliver to Purchaser free and clear of all Encumbrances, and Purchaser shall purchase and acquire, the Business comprised of the Transferred Assets. As used in this Agreement, the term Transferred Assets means: (a) the Baddi Manufacturing Plant; (b) the Leased Business Real Property; (c) all of the assets, rights and properties of Seller of every kind and description, located anywhere in the world, whether tangible or intangible, real, personal or mixed, in each case (except as otherwise expressly set forth in this Agreement or the Ancillary Agreements), to the extent such assets, rights and properties are used in or held for use in the Business or any Transferred Asset as of the Closing Date, including the following: (i) (A) all inventories ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchaser under the Sanofi Sub-License Agreements; (x) all Registrations supported by and including: (A) the product dossiers and all original documents and all related data, records, and correspondence under the possession of Seller (or that are accessible to Seller using commercially reasonable efforts) evidencing the Registrations issued to Seller by a Governmental Authority, in each case to the extent assignable with or without the Consent of the issuing Governmental Authority; and (B) all related Registration applications, product dossiers, clinical research and trial agreements, data results and records of clinical trials and marketing research, design history files, technical files, drawings, manufacturing, packaging and labeling specifications, validation documentation, packaging specifications, quality control standards and other documentation, research tools, laboratory notebooks, files and correspondence with regulatory agencies and quality reports, and all relevant pricing information and correspondence with Governmental Authorities with respect to such pricing matters; (xi) all product labeling, advertising, marketing and promotional materials and all other printed or wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions and privileges to which Seller may be entitled in connection with the Business or any of the Transferred Assets or Assumed Liabilities that are not excluded under Section 2.2(i) or Section 2.2(i): (xviii) all claims or benefits in, to or under any express or implied warranties, guaranties, indemnities or other contractual obligations or assurances from manufacturers or suppliers of goods or services relating to Inventory or other Transferred Assets sold or delivered to Seller prior to the Closing; (xix) copies of Tax Returns which relate in whole or in part to the Business; provided, however, that Seller may redact any information to the extent used in, or related to, the Excluded Assets or the Other Businesses from Tax Returns conveyed pursuant to this Section 2.1(c)(xix); provided, further, that such redaction shall not materially prejudice any information related to the Business contained in such Tax Returns; (xx) all indirect Tax credits (including value added Taxes) of Seller which are unutilized at Closing to the extent attributable to the Business and all Governmental Authorizations related to the Tax holiday granted to Seller in connection with the Baddi Manufacturing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Seller or its Affiliates under confidentiality agreements to which Seller or its Affiliates is a party relating to the direct or indirect sale of the Business (or any part thereof) to any Person other than Purchaser or any of its Affiliates; (l) the Sanofi In-License Agreement and the Roche In-License Agreement; (m) the Distribution and Promotion Agreement entered into and effective as of March 19, 2010 by and amont, on the one hand, MSD Pharmaceuticals Pvt. Ltd., Merck Sharp Dohme Asia Pacific Services Pte. Ltd, and on the other hand, Seller; and (n) all rights of Seller and its Affiliates arising under this Agreement, the Ancillary Agreements or from the consummation of the transactions contemplated hereby or thereby. Section 2.3 Assumed Liabilities. Subject to the terms and conditions of this Agreement, at the Closing, Purchaser shall assume and pay or perform when due only the following Liabilities to the extent relating to the Business (collectively, the Assumed Liabilities ): (a) all trade accounts payable to third party creditors of the Business for goods and services purchased, ordered or received by the Business and which are reflected as line items on the Final Statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistries in India or in any other country in order to preserve all rights and remedies available to Purchaser under applicable Law. (c) Effective as of the Closing, Seller, on behalf of itself and its Affiliates, shall grant to Purchaser and its Affiliates for a fixed-term of eight (8) years, an irrevocable, exclusive (even with respect to Seller and its Affiliates) and royalty-free right and license (with the right to grant sublicenses to distributors, agents and wholesalers (but only to the extent necessary to distribute pharmaceutical products on behalf of Purchaser), and to third party manufacturers (but only to the extent necessary to manufacture on behalf of Purchaser)) to use the Seller Corporate Name for purposes of making, having made, using, selling, offering to sell, importing or exporting generic pharmaceutical products in finished form in India, Nepal and Sri Lanka; provided, however, that the present license shall not be construed to limit the right of Seller and its Affiliates to use the Seller Corporate Name in the Other Businesses. Seller hereby acknowledges and agrees that Purchaser shall have the right to become the registered user of the Seller Corporate Name wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to Schedule 3.1(b)) of Four Hundred Million Dollars (USD 400,000,000) (the Third Annual Installment Payment ); and (v) On the fourth (4th) anniversary of the Closing Date, the Indian Rupee equivalent (calculated pursuant to Schedule 3.1(b)) of Four Hundred Million Dollars (USD 400,000,000) (the Fourth Annual Installment Payment , and together with the First Annual Installment Payment, the Second Annual Installment Payment and the Third Annual Installment Payment, the Annual Installment Payments , and each an Annual Installment Payment ). (c) Purchaser shall use commercially reasonable efforts to explore the possibility of entering into a foreign exchange transaction or other similar hedging transaction for purposes of covering Seller's potential exchange rate exposure resulting from the Annual Installment Payments (a Hedging Transaction ); provided, however, that Purchaser must obtain Seller's written consent prior to entering into such Hedging Transaction and further provided, that Seller shall fully reimburse and indemnity Purchaser for all Hedging Obligations and Losses related to or arising out of such Hedging Transaction. Section 3.3 Allocation of Cash Consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner/seller shall sell, convey, assign, transfer and deliver to the purchaser (Abbott Healthcare) free and clear of all encumbrances and the purchaser shall purchase and acquire the business comprised of transferred assets as defined under the agreement as transferred assets. We have also noted that Section 2.5 of the BTA extensively dealt with the intellectual property and for a specified period. Further under article 3 of the BTA, the parties have provided for the purchase price being a consideration of Indian Rupee equivalent of 3 Billion 720 Million Dollars (USD 3,720,000,000) (being the cash consideration) payable in accordance with Section 10.7 of the BTA. Further under Section 3.3 of the BTA, the parties have provided for allocation of cash consideration for stamp duty purposes and in such context, have provided for allocation of cash consideration for stamp duty purposes in Schedule 3.3 which we have extracted hereinabove. Thus, the intention of the parties in attributing allocation of the amounts is purely in the context of what has been agreed to in schedule 3.3 i.e. for stamp duty purposes only, as itself seen from the title of schedule 3.3. Applying the settled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness buys or sells, goods in the State whether for commission, remuneration or otherwise and includes,- (a) a factor, broker, commission agent, del-credere 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, residing in the State of a non-resident dealer, who buys or sells goods in the State for the purposes of or consequential to his [engagement in or in connection with or incidental to or in the course of, the business], (d) any society, club or other association of persons which buys goods from, or sells goods t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsuance of a contract, for cash, deferred payment or other valuable consideration; (ii) the transfer of property in goods (whether as goods or in some other form) involved in the execution of a 13[14[works contract including], an agreement for carrying out for cash, deferred payment or other valuable consideration, the building, construction, manufacture, processing, fabrication, erection, installation, fitting out, improvement, modification, repair or commissioning of any movable or immovable property;] (iii) a delivery of goods on hire-purchase or any system of payment by instalments; (iv) the transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; (v) the supply of goods by any association or body of persons incorporated or not, to a member thereof for cash, deferred payment or other valuable consideration; (vi) the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service is made or given for cash, deferred payment or other v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sales of any motor spirits specified in Schedule D at such rate per litre, if any, as may be set out from time to time against each of the Motor spirits, in column (3) of the said schedule.] 23. Assessment :- [(1) Where a registered dealer fails to file a return in respect of any period by the prescribed date, the Commissioner may assess the dealer in respect of the said period to the best of his judgment without serving a notice for assessment and without affording an opportunity of being heard: Provided that, if after the assessment order is passed, the dealer submits the return for the said period alongwith evidence of payment of tax due as per the return or submits evidence of return for the said period having been filed before the passing of the assessment order along with evidence of payment of tax due as per the return, then the Commissioner shall cancel, by order in writing, the said assessment order and after such cancellation, the dealer may be assessed in respect of the said period under the other provisions of this section: Provided further that, such cancellation shall be without prejudice to any interest or penalty that may be levied in respect of the said period: Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal regarding his examination or the report or the information received by him and the said appellate authority including the Tribunal shall thereupon, after giving the dealer a reasonable opportunity of being heard, pass an order to the best of its judgment, where necessary. For the purposes of section 26, such order shall be deemed to be an order passed in appeal.] (3) If the State Government or the Commissioner has initiated any proceeding before an appropriate forum, against a point which is decided against the State by a judgment of the Tribunal, then the Commissioner may, in respect of any order, other than the order which is the subject matter of the judgement, call for the record, conduct an examination as aforesaid, record his findings, call for the said books of accounts and other evidence, hear the dealer and pass an order as provided for under this section as if the point was not so decided against the State, but shall stay the recovery of the dues including interest, penalty or amount forfeited, in so far as they relate to such point until the decision by the appropriate forum and after such decision may modify the order of review, if necessary, after giving the deale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) provides for issuance of notice in the prescribed form. Sub-section (2) (b) provides that no order under such provision shall be passed after the expiry of five years from the end of the year in which the order passed by the subordinate officer has been served on the dealer. Schedule C of the MVAT Act provides for list of goods for which the rate of tax is 2% or 3% or 4% or 5%. As noted above item no. 39 of Schedule C provides for 5% tax on goods of intangible or incorporeal nature as may be notified from time to time, by the State Government in the Official Gazette. 52. Thus, on the applicability of Section 25 in the context of the assessment order dated 16 March 2015 is concerned, the scope of jurisdiction of the Commissioner would be two fold, firstly to examine whether any turnover or sale or purchase was not brought to tax or was brought to tax at a lower rate or was incorrectly classified and/or whether any claim was incorrectly granted or that the liability to tax was under stated, or in any case the order was erroneous insofar as it was prejudicial to the interest of the revenue. 53. As Section 25 would take into its ambit the turnover of sales which is not brought to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MVAT Act, so as to be included within the definition of turnover of sales as defined in clause 2 (33). 56. No doubt that incorporeal rights are considered to be goods, which ought not to be in dispute [see Vikas Sales Corporation Vs. Commissioner of Commercial Taxes (supra) and Mahyco Monsanto Biotech (India) Pvt. Ltd. vs. Union of India Ors. 2016 SCC OnLine Bom 5274 ], however, the question is whether considering the complexion and the nature of the agreement between the parties as contained under the BTA, the reviewing authority could have at all adopted such approach. As noted above, the contention of the petitioner is that such approach of the reviewing authority not only amounts to misreading of the BTA, but also not recognizing the correct position in law. We find ourselves in agreement with such contentions of the petitioner for more than one reason. 57. The first and foremost reason is to the effect that in doing so, the reviewing authority has adopted a pick and choose approach in dissecting the agreement and more particularly Section 3.3 read with Schedule 3.3 to give a different meaning to such part of the BTA dealing in regard to the intellectual property rights, so as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orming an opinion different from what has been formed by the Assessing Officer, such opinion of the reviewing authority has travelled beyond the contours of the BTA. In exercise of the review jurisdiction, the reviewing authority has intended to attribute a different meaning to Section 3.3 read with Schedule 3.3 when he discusses the effect of the said clauses when tested on the touchstone of his jurisdiction under Section 25 of the MVAT Act. The jurisdiction of the reviewing authority was to confine himself to the provisions of Section 25 in undertaking review of the assessment order. He could have re-examined the agreement only in the context of what has been provided by sub-sections (a) and (b) thereof and not otherwise, however, the reviewing authority exercising the review jurisdiction has travelled far beyond such explicit jurisdiction when he vivisects the BTA to take a view to levy tax on the BTA forming an untenable opinion on reading of Schedule 3.3. The review jurisdiction cannot be a jurisdiction under which the reviewing authority would intend to tax something which on a holistic reading of the BTA was per se not taxable under the MVAT Act. Such position would be clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituation that a decision is rendered by a quasi-judicial authority on the issues which were not posed/confronted in a precise, clear and unambiguous manner to the noticee in the perspective, such issues were intended to be comprehended by the authority. In our opinion, failure to follow such basic tenets would certainly result in a prejudice to the parties resulting in breach of principles of natural justice, thereby vitiating the order being passed. The principles of law in this context are well settled in catena of decisions of the Supreme Court, as also relied upon on behalf of the petitioner. However, we would not burden the judgment in discussing such well settled position in law. 61. Be that as it may, what was necessary for the reviewing authority, was not to deviate itself from the well accepted norms and approach of a holistic reading of such commercial document to ascertain as to what was the real intention of the parties in entering the BTA, and what is the cumulative and commercial effect of different clauses of the agreement when tested on the anvil of the provisions of the MVAT Act, to ascertain whether schedule 3.3 read with the other clauses of the agreement would a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary to distribute pharmaceutical products on behalf of Purchaser), and to third party manufacturers (but only to the extent necessary to manufacture on behalf of Purchaser)) to use the Seller Corporate Name for purposes of making, having made, using, selling, offering to sell, importing or exporting generic pharmaceutical products in finished form in India, Nepal and Sri Lanka; provided, however, that the present license shall not be construed to limit the right of Seller and its Affiliates to use the Seller Corporate Name in the Other Businesses. Seller hereby acknowledges and agrees that Purchaser shall have the right to become the registered user of the Seller Corporate Name within India, Nepal and Sri Lanka and accordingly the Parties hereto shall make the necessary applications to the registrar of Trademarks under the (Indian) Trade Marks Act, 1999 and similar applicable Laws in Nepal and Sri Lanka for and to the intent that Purchaser shall be registered as registered user in respect of the Seller Corporate Name for the purposes contemplated by this Section 2.5 (c). Any use by Purchaser or its Affiliates of the Seller Corporate Name is subject to their use of the Seller Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reviewing authority when the petitioner contended that sale of business as a going concern, was not taxable under the MVAT Act, and more particularly when the petitioner s business was being sold as a going concern. The petitioner had appropriately stated as to why itemized value of the assets and liabilities set out in Schedule 3.3 would not affect the nature of the transaction which was to transfer the on-going business to Abbott Healthcare. It was clearly stated that the itemized lists of assets and liabilities were provided only for the purpose of computation for the purpose of stamp duty in respect of such transfer and which very well fell within the acceptability of a formed slump sale as permitted under Section 2 (42C) of the Income Tax Act (as it stood at the relevant time) read with explanation (2) thereof, the relevant extract of which reads thus:- Section 2 (42C) - Slump Sale means the transfer of one or more undertakings as a result of the sale for a lump sum consideration without values being assigned to the individual assets and liabilities in such sales. Explanation 2 to Section 2 (42C) of the Income Tax Act reads thus:- For the removal of doubts, it is hereby decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive use of corporate name and logo to enable successful transition of the business from the petitioner to Abbott Healthcare. It was informed to the reviewing authority that the business sold by the petitioner was alongwith the products which were associated with the petitioner since many years and that after the transfer of business, Abbott Healthcare was required to sell the acquired products in the market and such situation ought not to be of any doubt in the minds of public on the genuineness of the products and its source. Hence, to avoid such situation in the public mind qua the products, that too in pharmaceutical sphere, it was explained that there was compelling need for use of seller s corporate name and corporate logo etc. in the transfer of the business under the BTA. Although such explanation was offered, it is seen that there is no discussion whatsoever, in this regard, in the impugned order. This shows complete non application of mind to the material aspects of the BTA as urged by the petitioner, and which was not only from what could be derived from the BTA and the effect schedule 3.3 read with Section 3.3 of the BTA had created in regard to the transfer of business. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the commentary of the learned authors Chaturvedi Pithisaria - Income Tax Law, Eighth Edition needs to be noted which reads thus: 56. Business re-organization-extensive amendments in relation to amalgamation, demerger and slump sale. 56.1 The business and economic environment of the country has thrown up the need for simplification and rationalization of laws relating to business re-organization for rationalization of the production system and better utilization of resources which have become necessary with a view to enabling the Indian industry to restructure itself to become globally competitive. It was in this background that the tax concessions to conversion of firms into companies or proprietary concerns into companies were provided in the Finance (No. 2) Act, 1998, and were widely welcomed. Following this up, the Finance Act, 1999, has carried out a number of amendments for the entire gamut of business reorganization. These include rationalization of the existing provisions relating to amalgamation of companies, new provisions relating to demerger of companies and sale or transfer of business as a going concern through slump sale. 56.2 Amalgamation in relation to the compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sole purpose of payment of stamp duty, registration fees or other similar taxes or fees shall not be regarded as assignment of values to individual assets or liabilities. [Clause (h), Section 3] 56.5 These amendments will take effect from 1st day of April, 2000 and will, accordingly, apply to the assessment year 2000-01 and subsequent years. [Section 58]'. 72. Learned Authors Sampath Iyengar in their celebrated commentary Law of Income Tax 13th Edition, referring to the decision of the Supreme Court in CIT Vs. Mugneeram Bangur Co. (1965)57 ITR 299(SC) have observed that after the decision of the Supreme Court in the said case, it was always understood that in the case of sale of a business as going concern, there would not be any liability with reference to the assets comprised therein and that liability for capital gains can be computed by treating the business as a whole and as a single asset distinguishing it from a severable or item-wise sale. It is stated that such principle was observed in the Sales Tax cases, so that no sales tax liability is incurred in sale of business as a whole. It would be profitable to extract the relevant part from the commentary, which reads thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned with the Tamil Nadu General Sales Tax Act, wherein the assessee was finally assessed to tax on a total taxable turnover of Rs. 1,59,291.31 and Rs. 1,37,880.50 respectively for the year 1967-68 by the Deputy Commercial Tax Officer/Assessing Officer. On further scrutiny of the records, the Assessing Officer noted that out of the consideration of Rs. 19,500/- for the transfer of its Ooty branch, a sum of Rs. 18,929.71 representing the sale value of the closing stock held at Ooty branch was wrongly exempted from payment of tax, hence the assessee was not eligible for exemption under the Sales Tax Rules. Accordingly, notice was issued to the assessee calling for its objections to the proposed revision of assessment. The assessee responded to the notice by contending that the business at Ooty branch as a whole was sold and that the branch business was also to be considered as a business as defined under Section 2 (d) of the Tamil Nadu General Sales Tax Act, 1959, and that the sale value of the stock held was eligible for the exemption from payment of tax under Rule 6 (d) of the Rules. The Assessing Officer did not accept this objection, as he was of the view that only the business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the Act and hence such turnover is not exigible to tax under the provisions of the Act. If so, the question of such sale proceeds being deducted from the total turnover under rule 6 (d) of the Tamil Nadu General Sales Tax Rules, 1959, will not arise because that rule contemplates determination of the taxable turnover by deducting the items mentioned therein from the total turnover of a dealer. Once it is found that the sale proceeds in question did not form part of the turnover at all, there is no question of the same being deducted from the total turnover for the purpose of determining the taxable turnover. 15. The above decision of the Allahabad High Court was followed by the Kerala High Court in C.M Hamsa Haji, v. Sales Tax Officer, Tirur, ., Tirur. In that case, a person transferred his business or stock-in-trade to a firm of which he was a partner as contribution of his capital therein. The Kerala High Court held that such a transaction did not amount to a sale of goods in the course of trade or business as a dealer within the meaning of the Kerala Sales Tax Act, 1963, since such a transaction did not involve any sale of goods and the transferor did not part with the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transferred business advantages like licenses, quotas, permission to use the corporate logo and a trade name. The Court observed that it was a case of a slump sale. Referring to the decision in CIT Vs. Narkeshari Prakashan Ltd., it was observed that mentioning of value / consideration in respect of land or building will not per se take the transaction out of slump sale. The nature of the BTA is not different from what was being considered by the Court in this case. Hence, the observations and conclusion on the principle of law that such transaction would be in the nature of a slump sale, is squarely applicable in the facts of the present case. 78. In Coromandal Fertilisers Ltd., Secunderabad Vs. State of A.P. and Ors. (supra), a Full Bench of the Andhra Pradesh High Court was considering a reference made to it by a Division Bench doubting the correctness of an earlier decision in Coromandal Lubricants Vs. Commissioner of Commercial Taxes A.P. 102 STC 274 , the following was the question which was answered by the Full Bench. Whether in a transaction of sale of an undertaking as a going concern with all assets and liabilities for a lump sum without stipulating any price for individu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'business', according to the learned Government Pleader. We find it difficult to accept this contention. When the entire movable property including plant, machinery, equipment and other capital assets are transferred together with its immovable and intangible assets, the assessee goes out of business. How can it be said that such a step is incidental to or connected with the manufacturing, trading or other business activity the assessee was hitherto carrying on? A step to close down and dispose of the entire business is obviously not incidental or complimentary to the business, that is to say, the manufacturing or trading activity which the assessee was carrying on. Hence, in our considered view, the second part of Section 2 (bbb) does not come into play at all. The second part of definition has art inextricable link with the first part. The transaction contemplated by second part should be some thing which takes place in the process and in the context of continued business activity and having the effect of aiding or promoting such business. That is not the case here. The second part has definitely no application to the case of Spectra Bottling Co. 68. The Rule was framed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rade along with its business, the amount of the proceeds of the sale of it is not shown separately from the amount of the proceeds of the sale of the goodwill etc., and it is not possible to say that a particular portion of the proceeds of the sale of the business should be included in the turnover. Our reply to the question is that proceeds of sale of the business sold by the assessee are not to be included in the turnover over which tax is payable under Section 3 of the U.P. Sales Tax Act and that no question of goods being single point goods or multiple point goods can possibly arise. Further Rule 44 (f) is of general application and applies in all cases regardless of the question of goods being single point goods or multiple point goods. We direct that copies of this judgment shall be sent under the seal of the Court and the signature of the Registrar to the Judge (Revisions) sales Tax and the Commissioner of Sales Tax, U. P., as required by Section 11 (6). We further direct that the commissioner of sales tax will get his costs or this reference, which we fix at Rs. 100/-. 80. The Full Bench of the Kerala High Court in the case of Deputy Commissioner of Sales Tax Vs. M/s. Dat P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual items of goods including goodwill and confirmed the demand made in the show cause notice. The Court observed that the assessing officer was completely wrong in thinking that the sale of business as a whole was taxable simply because such a sale also involved a sale of several items used in the course of business. The relevant observations reads thus: 32. Therefore, we are of the considered view that the Assessing officer was completely wrong in thinking that the sale of a business as a whole is taxable simply because such a sale also involves a sale of several items used in the course of business. . . 45. In the case on hand, another important feature is that the petitioner which is a partnership firm, sought to transfer the entire business as a going concern under a business transfer agreement to a private limited company of which the partners of the petitioner were the shareholders. In consideration of the transfer of the business as a whole, the partners of the petitioner were allotted equity shares and preferential shares in the company. Therefore, to treat the same as a sale of goods merely on the ground that all the assets of business are individually mentioned in the Sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering the same to be petitioner s sales/turnover of sales, for the financial year 2010-11 qua the amounts of the intangible assets as set out in schedule 3.3 of the BTA. Thus, in the context of the BTA, the reviewing authority could not have regarded such intangible items to be in any manner sale of goods , so as to fall within the petitioner's turnover of sales. We may also observe that merely for the reason that schedule C of the MVAT Act under item 39 provides for goods of intangible or incorporeal nature that would not mean that de hors the context the BTA intended to achieve, the reviewing authority could not have arbitrarily singled out and/or picked up Schedule 3.3 and tax the items in question as contained therein to be the petitioner s turnover of sales for the said financial year. It would not be permissible for the reviewing authority to disintegrate the BTA and to attribute a different effect to the BTA which was far from realistic and in fact destructive of the BTA. 83. We, accordingly, answer the questions as encased hereinabove in paragraph 46 to hold that in the facts of the present case slump sale under the BTA would not amount to sale of goods within the purvi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernate remedy available to him, cannot mechanically be construed as a ground for its dismissal. It was held that High Courts bearing in mind, facts of each particular case, have the discretion whether to entertain the writ petition or not, this being one of the self-imposed restrictions evolved through judicial precedents namely that the High Courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available and that mere availability of an alternative remedy of appeal and revision would not oust the jurisdiction of High Court and render a writ petition not maintainable. Such principles are borne in mind and applied by us in exercising the Court s discretion to entertain the present writ petition and for the reasons which we have adverted in detail hereinabove. 86. The petitioner has also mounted a challenge to the impugned order being barred by limitation as noted by us hereinabove, however, considering the view as taken by us, we do not intend to delve on such issue. 87. Before parting we may observe that to avoid prolix, we have adverted only to relevant decisions and the other decisions on similar issues, have been avoided t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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