TMI Blog2019 (11) TMI 1430X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances of this case particularly because statutory provision requires a pre-deposit of 25%. It is deemed just and proper to give liberty to the petitioner to make the deposit in terms of Section 79(5) of the Act of 2003 within 60(sixty) days from today. On such deposit, the appeal shall be heard by the Appellate forum. - W. P. (C) No. 7672 of 2019 - - - Dated:- 18-11-2019 - AJAI LAMBA C. J. and ACHINTYA MALLA BUJOR BARUA J. P. Baruah for the petitioner. D. Saikia , Senior Standing Counsel, Finance and Taxation Department and B. Gogoi for the respondents. ORDER M/s JSB Cement LLP, a limited liability partnership firm, has preferred this writ petition with the following prayers:- In the premises aforesaid, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther Order/Orders as Your Lordships may deem fit and proper in the ends of justice. 2. Mr. P. Baruah, learned counsel for the petitioner has been fair to the Court in contending that although the vires of Section 79(5) of the Assam Value Added Tax, 2003 have been challenged, however, the principle of law propounded by virtue of this petition has already been dealt with by the Hon ble Supreme Court of India and the issue has been decided against the cause carried by the petitioner before this Court. 3. Section 79(5) of the Act of 2003 reads as under:- No appeal by a person shall be entertained by an Appellate Authority unless such appeal is accompanied by satisfactory proof of payment of minimum twenty five percent of the dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 899 was in issue. The High Court had held said provision to be unconstitutional, which view was reversed by this Court. The proviso to said Section 47A reads:- Provided that no reference shall be made by the registering officer unless an amount equal to fifty percent of the deficit duty arrived at by him is deposited by the party concerned. The relevant discussion was as under:- 18. In our opinion, there is no violation of Articles14, 19 or any other provision of the Constitution by the enactment of Section 47-A as amended by A.P. Amendment Act 8 of 1998. This amendment was only for plugging the loopholes and for quick realisation of the stamp duty. Hence it is well within the power of the State Legislature vide Entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of this Court in ITO v. T.S. Devinatha Nadar (vide AIR paras 23 to 28) that where the language of a taxing provision is plain, the court cannot concern itself with the intention of the legislature. Hence, in our opinion the High Court erred in its approach of trying to find out the intention of the legislature in enacting the impugned amendment to the Stamp Act. 22. In this connection we may also mention that just as the reference under Section 47-A has been made subject to deposit of 50% of the deficit duty, similarly there are provisions in various statutes in which the right to appeal has been given subject to some conditions. The constitutional validity of these provisions has been upheld by this Court in various decisions w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition challenging the exorbitant demand made by the registering officer under the proviso to Section 47-A alleging that the determination made is arbitrary and/or based on extraneous considerations, and in that case it is always open to the High Court, if it is satisfied that the allegation is correct, to set aside such exorbitant demand under the proviso to Section 47-A of the Stamp Act by declaring the demand arbitrary. It is well settled that arbitrariness violates Article 14 of the Constitution vide Maneka Gandhi v. Union of India17.Hence, the party is not remediless in this situation. 15. In Har Devi Asnani [Har Devi Ansari -Vs- State of Rajasthan Ors :: (2011) 14 SCC 160] the validity of proviso to Section 65(1) of the Rajas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant and the demand of additional stamp duty made from the appellant by the Additional Collector were exorbitant so as to call for interference under Article 226 of the Constitution. 16. .. 17. In the light of these principles, the High Court rightly held Section 62(5) of the PVAT Act to be legal and valid and the condition of 25% of pre-deposit not to be onerous, harsh, unreasonable and violative of Article14 of the Constitution of India. Now we turn to question (c) as framed byt he High Court and consider whether the conclusions drawn by the High Court while answering said question were correct or not. (emphasised by us) 6. A perusal of the above extracted portion of the judgment rendered by Hon ble Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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