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2016 (3) TMI 3 - PUNJAB AND HARYANA HIGH COURT

2016 (3) TMI 3 - PUNJAB AND HARYANA HIGH COURT - TMI - Condition of pre-deposit under section 62(5) of the PVAT - Whether unreasonable, arbitrary, discriminatory and ultra vires Articles 14 and 19(1)(g) of the Constitution of India? - Held that:- even when no express power has been conferred on the first appellate authority to pass an order of interim injunction/protection, in our opinion, by necessary implication and intendment in view of various pronouncements and legal proposition expounded a .....

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The Respondent : Ms. Radhika Suri, Addl.A.G.Punajb with Mr. D.S.Mann, AAG, Punjab. Ajay Kumar Mittal,J. 1. This appeal has been preferred by the appellant-assessee under section 68 of the Punjab Value Added Tax Act, 2005 (in short, the PVAT Act ) against the order dated 18.11.2014, Annexure A.14 passed by the Value Added Tax Tribunal, Punjab, (in short, the Tribunal ) in Appeal No.78 of 2014 for the assessment year 2009-10, claiming following substantial questions of law:- a) Whether under the f .....

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as narrated in the appeal may be noticed. The appellantcompany is engaged in the business of developing the land purchased from various authorities and individuals. It is constructing residential apartments and commercial buildings with the purpose of selling them for consideration to interested persons and continue to be the owner of the said property till the execution of registered sale deed as per the terms of the agreement to sell. For the assessment year 2010-11, assessment order under sec .....

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nder section 30 of the PVAT Act was passed on 28.5.2013, Annexure A.1 which was challenged before the DETC(A). Vide order dated 1.7.2013, Annexure A.2, the DETC(A) dismissed the appeal on the ground of non-fulfilment of the provisions of Section 62(5) of the PVAT Act i.e. pre-deposit of 25% of the additional demand before institution of the appeal. The assessee filed appeal before the Tribunal. Vide order dated 8.8.2013, Annexure A.3, the Tribunal dismissed the appeal with the direction to depos .....

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he appeal vide order dated 8.1.2014, Annexure A.8. On 24.1.2014, assessment order for the assessment year 2010-11 was made creating demand of ₹ 2,98,88,864/- comprising of ₹ 80,67,170/- as tax, ₹ 1,61,34,339/- as penalty and ₹ 56,87,354/- as interest. According to the appellant on 31.1.2014, the Apex Court in Dishnet Wireless Limited vs. The Commercial Tax Officer and another, WP(C) No.1055 of 2013 granted stay of operation and implementation of sub section (5) of Section .....

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ee. 3. We have heard learned counsel for the parties. 4. It is not disputed by the learned counsel for the parties that the issue involved in this appeal stands decided by this Court in CWP No.26920 of 2013 (Punjab State Power Corporation Limited vs. The State of Punjab and Others) vide order dated 23.12.2015, wherein after considering the relevant statutory provisions and the case law on the point, following conclusions were drawn:- 33. It is, thus, concluded that even when no express power has .....

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ied at the stage of first appellate authority. As a sequel, it would follow that the provisions of Section 62(5) of the PVAT Act are directory in nature meaning thereby that the first appellate authority is empowered to partially or completely waive the condition of pre-deposit contained therein in the given facts and circumstances. It is not to be exercised in a routine way or as a matter of course in view of the special nature of taxation and revenue laws. Only when a strong prima facie case i .....

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the first appellate authority in appropriate cases in case of undue hardship is legal and valid. As a result, question (c) posed is answered accordingly. 34. In some of the petitions, the petitioners had filed an appeal without filing an application for interim injunction/protection which are still pending whereas in other petitions, the first appellate authority had dismissed the appeal for want of pre-deposit and further appeal has also been dismissed by the Tribunal on the same ground withou .....

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