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TMI Blog2024 (9) TMI 1353X X X X Extracts X X X X X X X X Extracts X X X X ..... ss the prayer for declaring Section 33 (5) of the Haryana Value Added Tax Act, 2003 (hereinafter to be referred as "the HVAT Act") as ultra vires because of the judgment of the Supreme Court having been passed in M/s Tecnimont Private Limited (formerly known as Technimont ICB Private Limited) vs State of Punjab and others (2021) 12 SCC 477. She further submits that the net worth of the petitioner company is much less than the demand as raised by the respondents and, therefore, would not be able to fulfill the condition under Section 33 (5) of the HVAT Act. Keeping in view the observations made in M/s Tecnimont Private Limited (supra), learned counsel for the petitioner prays for waiving off the requirement of pre-deposit of surety bond or bank guarantee for hearing of the appeal. 3. Learned Senior counsel for the petitioner has further submitted that the petitioner company had placed on record the material before the Haryana Tax Tribunal as well as before the Joint Excise and Taxation Commissioner (Appeal), Faridabad, to reflect that the petitioner is unable to furnish security in the form of surety bond or bank guarantee. There was already a demand against the defaulting debtors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from all encumbrances. 7. Learned Senior counsel for the petitioner has further submitted that as the net worth of the petitioner company with all the liquidities and the properties is less than the demand raised, it is impossible for it to contest the impugned orders in appeal and in the circumstances she has prayed that the petition be entertained directly as the petitioner cannot be rendered remediless. It is further stated that in the present case the notice under Section 15 (2) HVAT Act has not been served on the petitioner, which is mandatory in terms of Circular dated 21.03.2016 (Annexure P-1) and in view of the judgment in H. R. Steels Private Limited (supra), the order deserves to be set aside, for which plea was taken before the first Appellate Authority but the same has not been considered. 8. The petitioners in CWP Nos. 11250 and 11270 of 2019 have sought quashing of the orders dated 12.01.2018 passed by the Joint Excise and Taxation Commissioner (Appeals), Faridabad whereby the appeal of the petitioners was not entertained on account of non-furnishing of adequate security and order dated 15.01.2019 passed by the Haryana Tax Tribunal, Chandigarh, whereby their second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that the relief as granted in M/s Tecnimont Private Limited (supra) does not require to be extended in cases relating to Section 33 (5) of the HVAT Act. 15. Learned State counsel further submitted that while the Punjab VAT Act provided for pre-deposit of minimum of 25% of the total due amount as a condition for entertainment of an appeal, however, Section 33 (5) of the HVAT Act does not impose the condition of pre-deposit of any amount for entertainment of an appeal. It only stipulates that the assesseeappellant should furnish bank guarantee or adequate security for the disputed amount for entertainment of an appeal. This condition has been stipulated to secure the interest of the Revenue regarding recovery of the outstanding amount in case the asseessee-appellant does not succeed in appeal particularly when the assessee-appellant pleads that he is unable to even furnish bank guarantee or adequate security for the disputed amount much less pre-deposit thereof in whole or in part. She submitted that there is fundamental difference between the two provisions of Section 33 (5) of the HVAT Act and Section 62 (5) of the PVAT Act. Hence, the judgment of the Supreme Court would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onds or fixed deposit receipts as are issued by the Government of In India, the State Government, or Reserve Bank of India or Scheduled Bank, from time to time, to be pledged to the Commissioner or any other officer authorised by him in this behalf. (2) The security furnished under sub-sections (1), (2), (4) and (6) of section 12 shall be maintained in full so long as the registration certificates continues to be in force. (3) In the event of default in the payment of any tax, interest, penalty or any other amount due, the security furnished by the dealer shall be liable to adjustment towards such amount, after intimation to him and the short fall in the amount of security shall unless ordered otherwise be made up by him within a period of fifteen days from the date of intimation in any of the ways specified in sub-rule (1). (4) The security furnished under sub-section (6) of section 31 shall be forfeited, if the payment of the amount due on account of advance tax, penalty or interest imposed is not made within the time allowed for the payment thereof." 19. Section 62 (5) of the PVAT Act provides as under:- "62 (5) No appeal shall be entertained, unless such appeal is acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a party to deposit 50% of the deficient stamp duty as a condition precedent for reference to the Collector and after considering the law it held as under:- "27. In view of the above, we are clearly of the opinion that Section 47-A of the Stamp Act as amended by A.P. Act 8 of 1998 is constitutionally valid and the judgment of the High Court declaring it unconstitutional is not correct. 28. We may, however, consider a hypothetical case. Supposing the correct value of a property is Rs 10 lakhs and that is the value stated in the sale deed, but the registering officer erroneously determines it to be, say, Rs 2 crores. In that case while making a reference to the Collector under Section 47-A, the registering officer will demand duty on 50% of Rs 2 crores i.e. duty on Rs 1 crore instead of demanding duty on Rs 10 lakhs. A party may not be able to pay this exorbitant duty demanded under the proviso to Section 47-A by the registering officer in such a case. What can be done in this situation? 29. In our opinion in this situation it is always open to a party to file a writ petition challenging the exorbitant demand made by the registering b officer under the proviso to Section 47-A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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