TMI Blog2019 (1) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 of the Rules. Since we are upholding the validity of proviso to Section 20 of Adhiniyam 1991 and provisions of Rule 18 of the Rules; and since the appeals preferred by the petitioners were dismissed for non-compliance of condition of pre-deposit, we direct that in case the petitioners deposit the amount contemplated in proviso to section 20 of the Adhiniyam, 1991 and Rule 18 of the Rules, within thirty days from the communication of this order, the Appellate Court shall entertain the appeals, and decide them on merits. Petition disposed off. - WP.7228.15, WP.7229.15, WP.7230.15, WP.7231.15, WP.7232.15, WP.7255.15, WP.7256.15, WP.7257.15 And WP.7546.15 - - - Dated:- 3-1-2019 - Shri Justice Sanjay Yadav And Shri Justice Vivek Agarwal For the Petitioners : Shri MPS Raghuvanshi, Shri Sanjay Kumar Sharma and Shri Himanshu Sharma, learned counsel For the Respondent : Shri Praveen Newaskar, learned Government Advocate, Shri R.D. Sharma, learned counsel ORDER PER JUSTICE SANJAY YADAV: This order shall lead to final disposal of WP.7228.15, WP.7229.15, WP.7230.15, WP.7231.15, WP.7232.15, WP.7255.15, WP.7256.15, WP.7257.15 and WP.7546.15. (2) Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rist Permit. There was a complaint against the petitioner that though he surrendered All India Tourist Permit No.1835/STA/TOB/08 from 01.03.2008 to 31.07.2013 on 31.07.2008 but continued to ply the buses from Madhya Pradesh to Maharashtra. Action of imposition of tax and recovery thereof was initiated against the petitioner which led him to file W.P.No.8437/2013, W.P.No.8468/2013, W.P.No.8476/2013, W.P.No.8443/2013, W.P.No.8451/2013, W.P.No.8410/2013, W.P.No.8478/2013, W.P.No.8471/2013, W.P.No.8443/2013, W.P.No.8437/2013, W.P.No.8471/2013, W.P.No.8476/2013, W.P.No.8410/2013 and W.P.No.8468/2013 before Indore Bench of this Court. That these batch of writ petitions were allowed on 01.08.2013. Whereagainst WA.851/13, WA.929/13, WA.930/13, WA.931/13, WA.932/13, WA.934/13, WA.973/13, WA.974/13, WA.1032/13, WA.1033/13, WA.1034/13, WA.1035/13, WA.1036/13, WA.1038/13 WA.1044/13 were filed which were decided on 10.12.2014 in the following terms: It is not in dispute that the respondent No.5 in all the matters, who are the owner of the vehicle and are having All India Permit, has surrendered all the vehicles by respondent No.5. thereafter, the complaint was filed against the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporation Ltd. [(1985) 156 ITR 835], Commissioner of Income Tax Vs. Vikas Chemi Gum India [(2005) 276 ITR 32], Union of India Vs. Satish Panalal Shah [(2001) 249 ITR 221], Radhasoami Satsang Vs. CIT [(1992) 193 ITR 321], CIT Vs. Escorts Ltd. [(2011) 338 ITR 435 (Delhi)], interim order passed by Hon'ble Supreme Court in Amrit Banaspati Company Pvt. Ltd Vs. State of Punjab WP(c) No.69 of 2014 and in Govind Trading Company Vs. State of Punjab CWP No.2342 of 2014, M.P.A.I.T. Permit Owners Assocn. And another Vs. State of M.P. [2004(3) MPHT 175 (SC)] and Mardia Chemicals Ltd. and others Vs. Union of India and others [(2004) 4 SCC 311] , to bring home the submissions. (7) Respondents, on their turn, have raised preliminary objection as to maintainability of present petition being barred by principle of constructive res judicata. It is urged that the validity of entire Adhiniyam was questioned by Jabalpur Bus Operators' Association in Misc. Petition No.1646/1993 [Jabalpur Bus Operators' Association through its Secretary Mahendra Chaudhary, Jabalpur and others Vs. Union of India and others (AIR 1994 MP 62)] . It is contended that the Division Bench upheld the constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers [AIR 1965 SC 1623] it is observed: (7) ........Assuming that certain aspects of the question were not brought to the notice of the Court, we see no grounds for entering upon re-examination of the question. ......... (11) In T. Govindaraja Mudaliar etc. etc. Vs. State of Tamil Nadu and others [AIR 1973 SC 974] , wherein it is observed: It is common ground in the present cases that the validity of Chapter IV-A of the Act has been upheld on all previous occasions. Merely because the aspect now presented based on the guarantee contained in Art. 19 (1) (f) was not expressly considered or a decision given thereon will not take away the binding effect of those decisions on us. (12) In M/s Kesho Ram and Co. and others Etc. Vs. Union of India and others [(1989) 3 SCC 151] wherein it is held:- 10. ....Once the petitioners challenged the validity of the impugned notification dated 24.9.1974 in earlier proceedings they ought to have raised all the grounds which could have been raised in impugning the validity of Section 3 and the notification, if they failed to raise a ground in earlier petition they cannot raise that ground now in the present pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ahmed Latifur Rehman Sheikh Vs. State of Maharashtra Ors [AIR 2010 SC 2633] is of no assistance. (15) In view whereof, it is not open for the petitioner to question the validity of proviso to section 20 of Adhiniyam, 1991 and the relevant Rule 18 of the Rules. (16) In State of Haryana Vs. Maruti Udyog Ltd. and others (2000) 7 SCC 348, Their Lordships dwelling upon similar challenge in respect of sub-section (5) of Section 39 Haryana General Sales Tax Act, 1973, containing similar provision as in section 20 of Adhiniyam, 1991 regarding predeposit, being the condition precedent for entertaining an appeal held: 7. Section 39 of the Act confers a right of appeal upon the assessee against any original order including an order under Section 40 passed under the Act and the Rules made thereunder. Sub-section (5) thereof provides: 39 (5) No appeal shall be entertained unless it is filed within sixty days from the date of the order appealed against and the appellate authority is satisfied, that the amount of tax assessed and the penalty and interest, if any, recoverable from the persons has been paid. Provided that the said authority, if satisfied that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Tribunal to relieve him from the rigor of above restriction under the circumstances spelt out in the proviso of the aforesaid Section. Sub-section (5) regulates the exercise of right of appeal conferred upon an assessee under Section 39 of the Act, the object being to keep in balance the right of the aggrieved person and the right of the State to speedy recovery of tax. The Full Bench of the Punjab Haryana High Court in Emerald International Ltd. (supra) considered the scope of Section 39(5) of the Act and concluded: As a sequal to our discussion on the question of law referred to us the following conclusions can be deduced: (a) The appeal is a creation of a statute and in case a person wants to avail of the right of appeal, he has to accept the conditions imposed by the statute. (b) The right of appeal being a creature of Statute the legislature could impose conditions for exercise of such a right. Neither there is a constitutional nor legal impediment for imposition of such a condition. (c) The right of appeal is neither natural nor inherent attaching to a litigation and such a right neither exists nor can be assumed unless expressly g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cals Ltd. (supra) Section 17 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 which prescribes pre deposit of 75% has been held to be unreasonable and oppressive because of taking over of secured Assets/the Management thereof along with the right to transfer such interest being taken over by the secured creditor or in some cases property is also sold. In these fact situation, it is held: 60. The requirement of pre-deposit of any amount at the first instance of proceedings is not to be found in any of the decisions cited on behalf of the respondent. All these cases relate to appeals. The amount of deposit of 75% of the demand, at the initial proceeding itself sounds unreasonable and oppressive more particularly when the secured assets/the management thereof along with the right to transfer such interest has been taken over by the secured creditor or in some cases property is also sold. Requirement of deposit of such a heavy amount on basis of one sided claim alone, cannot be said to be a reasonable condition at the first instance itself before start of adjudication of the dispute. Merely giving power to the Tribunal to waiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vehicle Act, 1988, which provided only certain amounts of fine; thereby; holding that a State law would be repugnant to the Union law when there is direct conflict between the two laws. Such repugnancy, it was observed by Their Lordships, may also arise where both law operate in the same field and the two cannot possibly stand together, for example, where both prescribed punished for the same offence but the punishment differs in degree or kind or in the procedure prescribed. In the case at hand no such repugnancy has been commended at. Thus the law laid down in M.P.A.I.T. Permit Owners Assocn. (supra) is also of no help to the petitioner. (21) The decisions in Commissioner of Income Tax Vs. Vikas Chemi Gum India [(2005) 276 ITR 32]; Radhasoami Satsang Vs. CIT [(1992) 193 ITR 321]; Union of India Vs. Satish Panalal Shah [(2001) 249 ITR 221] and CIT V. Godavari Corporation Ltd. [(1985) 156 ITR 835], turns on their own facts and are of no assistance with present fact situation. (22) Consequently, petitions fail and are dismissed. (23) Since we are upholding the validity of proviso to Section 20 of Adhiniyam 1991 and provisions of Rule 18 of the Rules; and since the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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