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2001 DIGILAW 843 (PNJ)

Hindustan Petroleum Corporation Ltd. v. Excise & Taxation Officer, Ambala Cantt, Ambala

2001-08-10

ASHUTOSH MOHUNTA, JAWAHAR LAL GUPTA

body2001
JUDGMENT Jawahar Lal Gupta, J. - Has the Sales Tax Tribunal, Haryana erred in rejecting the petitioners prayer that the appeal under Section 39 be entertained without deposit of the tax etc. as assessed by the competent authority ? This is the short question that arises for consideration in these three writ petitions. 2. The petitioner deals in petroleum products. It furnished its returns in respect of the years 1994-95, 1995-96 and 1996-97. After the Excise and Taxation Officer had decided the matter, the Joint Excise and Taxation Commissioner reopened it under the provisions of Section 9(2) of the Central Sales Tax Act, 1956 read with Section 40 of the Haryana General Sales Tax Act, 1973. After looking into the matter, he passed orders raising an additional demand in respect of each of the three years. These were as under :- Sr. No. Year Demand 1. 1994-95 5,41,421.00 2. 1995-96 10,64,947-00 3. 1996-97 13,23,930-00 29,30,298.00 3. Aggrieved by the orders passed by the authority, the petitioner filed three appeals before the Sales Tax Tribunal. It prayed that the appeals be entertained without deposit of the tax etc. as levied by the competent authority. 4. The Tribunal considered the matter and rejected the request vide its order dated May 2, 2001. A copy of this order has been produced as Annexure P.3 in these three petitions. It was found that the petitioner is not "unable to pay" the amount of tax etc. as levied by the competent authority. Aggrieved by the three orders passed in respect of three separate years as noticed above, the petitioner has approached this Court through these three writ petitions. It prays that the Tribunals order be quashed. 5. We have heard Mr. R.S. Chawla, counsel for the petitioner. He contends that the Corporation is facing financial crunch. It has taken loans from Financial Institutions. Thus, it is unable to meet with the demand. Is it so ? 6. Section 39 entitles an aggrieved party to file an appeal. Clause (5) inter alia provides that and appeal shall not be entertained unless "the amount of tax assessed and the penalty and interest, if any, recoverable from the person has been paid". This provision has been enacted to ensure that the inflow of revenue continues. Is it so ? 6. Section 39 entitles an aggrieved party to file an appeal. Clause (5) inter alia provides that and appeal shall not be entertained unless "the amount of tax assessed and the penalty and interest, if any, recoverable from the person has been paid". This provision has been enacted to ensure that the inflow of revenue continues. It is undoubtedly true that the competent authority has been empowered to waive the condition that the authority should be "satisfied that the person is unable to pay...." Thus, it is only when the assessee is unable to pay that the authority can relax the rigorous of the provision. Not otherwise. 7. What is the position in the present case ? A perusal of the order passed by the revisional authority in respect of the assessment year 1994-95 shows that the petitioner had purchased petroleum products form the Indian Oil Corporation, Ambala for Rs. 44,96,517/-. These were sold by the petitioner for Rs. 1,35,35,536/- to its dealers. Still further, its turn-over for the relevant period in the State of Haryana was Rs. 55,73,20,456/-. Otherwise, the turn-over of the Corporation was in hundreds of crores. 8. The factual position has not been disputed. In this situation, it cannot be said that the finding of the Tribunal that the petitioner is in a position to pay is wrong. Resultantly, no ground for interference is made out. 9. Mr. Chawla was at pains to point out that different Benches of this Court had accepted similar requests in the past. Thus, even in the present case, the prayer for exemption from payment before the appeal is entertained should be accepted. 10. We are unable to accept the contention. The facts on record clearly belie the suggestion that the petitioner is unable to pay. Keeping in view the fact that the gross turnover for the three relevant years is much more than Rupees One thousand crores, it cannot be said that the petitioner is not in a position to pay an amount of Rs. 29,30,298/- as demanded by the authorities in respect of the three assessment years. 11. Faced with this situation, learned counsel contended that the tax had been illegally levied. In any case, a major part of the amount viz. Rs. 15,39,258/- had already been paid. 12. At this stage, we are not concerned with the merits of the case. 29,30,298/- as demanded by the authorities in respect of the three assessment years. 11. Faced with this situation, learned counsel contended that the tax had been illegally levied. In any case, a major part of the amount viz. Rs. 15,39,258/- had already been paid. 12. At this stage, we are not concerned with the merits of the case. The claim regarding the liability has to be decided by the competent authority. However, on the material as at present, it cannot be said that the Tribunal has erred in taking the view that the petitioner is actually in a position to pay. Resultantly, the order calls for no interference. 13. No other point has been raised. 14. In view of the above, we find no merit in these petitions. These are consequently, dismissed in limine. Petition dismissed.