TMI Blog2023 (3) TMI 1458X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, this Court is of the considered view that the petitioner, which cannot be granted complete waiver, must deposit 50% (15% of the amount in demand) of the requirement of pre- deposit under Section 63(4) of the KVAT Act with reasonable time. The petitioner is permitted to deposit 50% (that is 15% of the amount in demand) as required under Section 63(4) of the KVAT Act and the petitioner shall be at liberty to make this deposit within six (6) weeks from the date of receipt of a certified copy of this order - Petition allowed in part. - HON'BLE MR JUSTICE B M SHYAM PRASAD For the Petitioner Sri. Sandeep Huilgol., Advocate For the Respondents Sri. K. Hema Kumar, AGA ORDER The petitioner has impugned the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the light of clear provision of law u/s.. 63(4) of the KVAT Act, 2003 and decision/s of the Hon'ble High Court of Karnataka, we are of the considered opinion that this KAT is not vested with power or discretion to waive of or dispense with the payment of pre-deposit because, it is mandate of law. 3. Sri Sandeep Huilgol, the learned counsel for the petitioner, submits that the petitioner s grievance as against the order-in-original is essentially because the petitioner is denied the benefit of input tax credit [ITC] on the ground that the Returns in Form VAT 100 are filed belatedly, but the question whether ITC could be denied when the Returns are filed belatedly is pending consideration before the Hon ble Supreme Court in Civi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause Returns are filed belatedly, there would be multiple proceedings in the present instance, and such final decision could only be with the decision of the Hon ble Supreme Court in the pending proceedings in Civil Appeal No. 4936/2016. The petitioner, who has placed on record bonafide circumstances to show just cause against delay, cannot be denied the benefit of ITC, and ultimately the petitioner s grievance would be addressed with the decision of the Hon ble Supreme Court and consideration of the circumstances that could justifiably explain the delay. 6. Sri Sandeep Huilgol argues that this Court, in deciding on the petitioner s request for waiver of pre-deposit under Section 63(4) of the KVAT Act, must consider the afore circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision of this Court in W.P. No. 44778/2019 to persuade this Court to opine that pre-deposit of 30% of tax or other amounts is mandatory and cannot be waived. He relies upon paragraph 4 of this order which reads hereunder: Section 63[7][a] of the Act contemplates that the Appellate Tribunal may, in its discretion, stay payment of seventy percent of the tax or other amount disputed, if the appellant makes payment of the thirty percent of the tax or other amount disputed along with the prescribed form of appeal. This payment of 30% of the tax or the other amount disputed is mandatory and the same cannot be waived of, as claimed by the petitioner. Hence, there is no substance in the writ petition to set aside the order impugned. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... centage with further directions to furnish bank guarantee. These decisions have prevailed without challenge, and it follows from this that this Court in exercise of jurisdiction under Article 226 of the Constitution of India has modulated the requirement of pre-deposit depending on the facts and circumstances of the case. The modulation is in due deference to the statutory provisions and also to ensure that the appellate remedy is adequately exhausted. In fact, in the decision of a Division Bench of the High Court of Gujarat Vinod Kumar Dugar, Proprietor of Arihant Enterprise v. State of Gujarat in R/Special Civil Application No. 21012/2019 and connected matters disposed of on 30.01.2023., which is relied upon by Sri Sandeep Huilgol, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d hence, there is no evasion of tax. These assertions are not contested. The petitioner, though after departmental inspection, has filed Returns in the month of November 2015. In support of the belated filing of the Returns, the petitioner has stated that the Managing Partner s wife was suffering from cancer, and she was undergoing treatment with frequent hospitalization until her demise in the month of December 2015, and that this unexpected and unfortunate turn of events created a strain and as such, the Returns are not filed in time. These circumstances must have due play even at this stage. 13. On careful consideration of these circumstances, and this Court s opinion on modulating the requirement of pre-deposit under Section 63(4) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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