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TMI Blog2022 (9) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... Justice Anita Sumanth For the Petitioners : Mr.N.Murali For the Respondents : Mr.C.Harsha Raj Additional Government Pleader (for R2 & R3) COMMON ORDER This is a batch of twenty two (22) Writ Petitions filed by two petitioners. The years in question are 2011-12 to 2016-17 in the case of Jaishni Packs Pvt. Ltd., and 2012-13 to 2016-17 in the case of Laxmi Packaging. 2.The petitioners have challenged the orders of the first Appellate Authority dated 31.10.2018 in all cases, as well as an order passed by the Sales Tax Appellate Tribunal (in short 'STAT/Tribunal') declining admission of the second Appeals on the ground that they were not maintainable, all dated 21.08.2019. 3.The brief facts as relevant to determine the issue in question a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal, may not have the power under statute to waive the pre-condition for deficit of tax, this Court under Article 226 of the Constitution of India can certainly consider such a prayer. The petitioners also disclose that the vires of the provision, specifically the statutory pre-condition has been upheld by this Court in the case of K.M.Corporation and another Vs. State of Tamil Nadu and others [11 VST 782]. 8.In support of their arguments that this Court under Article 226 has wide powers to consider the grant of waiver, learned counsel relies upon a judgment of the Hon'ble Supreme Court in the case of Tecnimont Pvt. Ltd. Vs. State of Punjab and Others [2019 SCC Online 1228] as well as two earlier judgments of the Hon'ble Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision is as under: 13.Section 58 of the Act, to the extent to which it is relevant to decide the issue in this matter, reads as follows: '58.Appeal to Appellate Tribunal.-(1) Any officer prescribed by the Government or any person objecting to an order passed by the Appellate [Deputy] Commissioner under sub-section (3) of Section 51, or by the Appellate [Joint] Commissioner under sub-section (3) of Section 52, or by the [Joint] Commissioner under sub-section (1) of Section 53, may, - ...........' ........... Provided further that no appeal filed by any person objecting to an order passed,- (a) under sub-section (3) of Section 51 or under subsection (3) of Section 52 shall be entertained unless it is accompanied by satisfactory pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court as under:- (a) Whether the State is empowered to enact Section 62(5) of the PVAT Act? (b) Whether the condition of 25% pre-deposit for hearing first appeal is onerous, harsh, unreasonable and, therefore, violative of Article 14 of the Constitution of India? (c) Whether the first appellate authority in its right to hear appeal has inherent powers to grant interim protection against imposition of such a condition for hearing of appeals on merits?' 17.The Hon'ble Supreme Court upheld the decision of the Punjab and Haryana High Court on questions (a) & (b) to the effect that the condition imposed by statute was not onerous and the vires was thus upheld. 18.In doing so, the Bench tested the provision in the context of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as there is no express inhibition, the implied power can extend to doing all such acts or employing such means as are reasonably necessary for such execution. The reliance on the principle laid down in Kunhi cannot go to the extent, as concluded by the High Court, of enabling the Appellate Authority to override the limitation prescribed by the statute and go against the requirement of pre-deposit. The High Court was clearly in error in answering question (c).' 21.Thus the conclusion of the Court was to the effect that the principle laid down in Mohammed Kunhi's case cannot override a statutory limitation and to this extent the decision of the High Court that had held that the Tribunal had the incidental power of granting a waiver overr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Writ Petition. 25.This assumes importance in light of the fact that an appeal to be filed by a person aggrieved by an order of enhancement would have to be accompanied by payment of 50% of the enhanced amount which would have placed to a great burden upon the appellants. It is in this context that the Hon'ble Supreme Court observed that it would be possible in such cases of extreme hardship, for the Court to consider the challenge to a patently and arbitrary order of enhancement. 26.Thus, for an assessee under the VAT Act to obtain the benefit of the judgments in the cases of Smt.P.Lakshmi Devi and HardeviAsnani (Supra), it would be necessary to establish that substantial hardship has been caused to the petitioners and that the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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