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TMI Blog2025 (2) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned order dated 11th July 2024 and the consequent impugned Recovery Notice dated 21st January 2025, to the extent it upholds the demand of surcharge, despite the absence of an assessment and recovery mechanism, and also to the extent it demands purchase tax, without establishing that the Petitioner has violated the condition precedent, namely, that the goods purchased have been used for purposes other than for use in manufacture or for resale. 2. Though this is the relief sought in the above Writ Petition, Mr. Dada, the learned Senior Counsel appearing on behalf of the Petitioner, fairly stated to the Court that the only relief he presses in the above Writ Petition is to direct the Maharashtra Sales Tax Tribunal ("MSTT") to decide Refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that in the present case, the State Authorities are seeking to make a distinction between surcharge and tax for the purposes of Rule 15 (2) (b) and contending that surcharge does not include tax, which means that the Petitioner is not entitled to the benefit under Rule 15 (2) (b) of the said Rules. He submitted that if this argument is to be taken to its logical conclusion, it would mean that there would be no provision in the Act itself, or the Rules framed thereunder, for either assessment or recovery of surcharge as all the provisions only refer to "tax". He submitted that according to the Petitioner, surcharge would be included in the word "tax" and that is the only way the Act would become workable, especially with reference to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e still pending. There can be no opposition to this. The question is what is to be done in the meanwhile. The Petitioner contends that it is entitled to a stay of the recovery proceedings whereas it is the contention of the State that no stay on recovery proceedings can be granted because of the statutory bar. Though ordinarily we agree with Mr. Sonpal that recovery of taxes ought not to be stayed, and which is stipulated in Section 21 (7), we find that there is an inherent inconsistency in the argument canvassed on behalf of the State. If the State contends that surcharge is different from tax, then, the statutory bar as referred to in Section 21 (7) cannot apply because the Section clearly stipulates that what should not be stayed is only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt stay of recovery. Once this is the case, we are unable to agree with Mr. Sonpal that the Writ Petition is not maintainable, and therefore, ought not to be entertained by us. This argument is, therefore, rejected. 9. In view of the foregoing discussion, the following order is passed:- (a) The MSTT is requested to hear and decide Reference Application Nos. 3 of 2024, 4 of 2024 and 5 of 2024 filed by the Petitioner as expeditiously as possible and preferably within a period of four weeks from the date of uploading of this order on the High Court Website. (b) In the meanwhile, and until the above Reference Applications are decided, the operation, implementation and execution of the Recovery Notice dated 21st January 2025 shall remain s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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