Professional updates of Maharastra VAT and Excise by advocate GV Khare, Mumbai

In case of mismatch, hawala, shaym dealers this is a master key for Maharashtra value Added tax Act, 2002

If dealers in Maharashtra want justice and definite results below information is decisive tool given by our Indian Constitution, 1950 to all citizens of India. Article 142 of complete justice in our constitution is the only constitution in the world which powers are given to Supreme courts, High courts and Tribunals to give relief to anyone in India who is facing injustice. Below I am giving you Text Article 142 of Indian Constitution and two judgements given by Supreme Court of India giving relief to Sales Tax dealers.

Article 142 in The Constitution Of India 1950

142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc

( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself

1] Prem Chand Garg vs Excise Commissioner, U. P., … on 6 November, 1962

Equivalent citations: 1963 AIR 996, 1963 SCR Supl. (1) 885

Author: P Gajendragadkar

Bench: Sinha, Bhuvneshwar P.(Cj), Gajendragadkar, P.B., Wanchoo, K.N., Gupta, K.C. Das, Shah, J.C.

Therefore even in a proceeding under Art. 32(1), this Court is competent to make all such orders as it deems proper including an order for security for costs of the respondent.

The impugned rule which enunciates the jurisdiction of the Court to impose terms as to giving of-‘ security is not therefore void.

By COURT : In accordance with the opinion of the majority the writ petition is allowed and the order calling upon the petitioners to furnish security of Rs. 2,500/- is set aside. There will be no order as to costs.

Comment by  Gajanan V. Khare Advocate

In this case Supreme Court made a order for part payment of Rs.2,500/- but petitioner pleaded that he is unable to pay this amount due to difficulties. To give complete justice Supreme Court withdrew his own orders. This judgement will be usefull for our part payment cases in Sales tax i.e. MVAT Act,2002.

2] Supreme Court of India

Asst.Commissioner vs M/S.Shukla & Brothers on 15 April, 2010

CIVIL APPEAL ……… OF 2010

(@ SLP (C) NO. 16466 OF 2009)

In abovereffered case While discussing  Article 142 and   Article 226 of the Constitution of India, the Supreme Court has stated that powers of the Supreme Court under Article 142 are much wider and the Supreme Court would pass orders to do complete justice.

It may be necessary for that to refer to the basic facts giving rise to the present appeal. The

respondent claimed to be a contractor who has obtained impartible contract of constructing 400

shops in JP Market, Chhota Talab, Kota. As per the contract the shops were to be handed over to

Cloth Merchant Association, Kota. The respondent had received Rs.95,26,276.00 in the year

1997-98 and Rs.22,38,026.00 in the year 1998-99. The assessing authority formed an opinion and

recorded a finding that the shutters and doors were not manufactured from tax paid raw material in

impartible contract and as such shutter was excluded from labour charges in the above years, and

levied tax, interest, penalty and surcharge upon the respondent. The order of the assessing authority

dated 19th July, 2000 and 22nd February, 2001 respectively were challenged by the respondent

before the Deputy Commissioner (Appeals), Kota and intended that if the shutters were not installed

in the shops, then as per the contract the shops would not have deemed to be complete. Relying

upon the judgments of the Supreme Court in Gannon Dunkerley & Co. (Madras) Ltd. – State of

Madras [AIR 1958 SC 560] as well as State of Rajasthan Vs. Man Industrial Corporation [(2003) 7

SCC 522] it was contended that in an impartible work contract as per the terms of that contract, the

material has been used in work contract and there was no contract for manufacturing shutters. Thus

on account of execution of impartible work contract, the property was immovable and tax could not

be levied thereon.

The appeal preferred by the respondent was accepted by the Deputy Commissioner vide his Order

dated 23rd February, 2002. This Order was assailed in appeal by the Department before the

Rajasthan Tax Board which also came to be rejected vide Order dated 18th October, 2003. The

Board accepted the plea of the respondent that the shutters and doors were manufactured from tax

paid raw material in a work contract, therefore, could not be the goods transferred for the purposes

of levy of tax, holding the same not justifiable to set aside the levy of tax, penalty, interest or

surcharge.

Comment by  Gajanan V. Khare Advocate

In this case set off was not granted by assessing authorities Supreme Court by invoking Article 142 of Complete Justice directed the lower Authorities under Sales Tax laws for grant of Set off.