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2011 DIGILAW 1428 (MP)

Krishna Automobiles v. State of M. P.

2011-12-15

K.K.LAHOTI, VIMLA JAIN

body2011
JUDGMENT I.A. No. 13223/2011 for amendment. 1. The prayer made in the application is not opposed by the learned counsel for respondents. 2. Considering the fact that this petition is at pre-admission stage and the amendment sought is based on subsequent events, prayer made in the application is allowed. Petitioner is permitted to amend the petition, as prayed in the application. Necessary amendment be carried out during the course of the day and the documents filed along with the amendment application be placed at an appropriate place. 3. Heard on admission. 4. The petitioner has challenged the order Annexure P-12 dated 18.10.2011, by which an appeal preferred by the petitioner under section 46 of the M.P. Value Added Tax Act, 2002 (hereinafter referred to as 'Act' for short) has been dismissed because of non compliance of order passed by the respondents under section 46(5) of the Act. The aforesaid provision provides that any person aggrieved by an order of assessing officer can file a first appeal, but such appeal shall not be entertained unless 10% of the assessed tax is deposited by the petitioner. 5. It is submitted that the petitioner sought time for depositing aforesaid amount, but could not deposit within the extended period and the appeal was dismissed vide order dated 18.10.2011. It is further submitted by Shri Mishra that petitioner has now deposited the aforesaid amount on 17.10.2011, 29.10.2011, 11.11.2011 and 21.11.2011 and total amount of Rs. 16,64,000/- has been deposited by the petitioner in the treasury. It is submitted that this fact may be taken note of and by condoning the delay the appellate authority may be directed to decide the appeal on merits. 6. Shri Kumaresh Pathak, learned counsel for State submitted that the appellate authority is having power to extend period of deposit under rule 60 of the M.P. Value Added Tax Rules, 2006, so the petitioner may approach to the appellate authority seeking for extension of time in depositing the statutory amount and hearing of appeal on merits. 7. Rule 60 of the VAT Rules provides thus :- 60. 7. Rule 60 of the VAT Rules provides thus :- 60. Summary rejection (1) If the memorandum of appeal does not comply with all or any of the requirements of Rule 58 or the appellant fails to pay in accordance with the provisions of sub-section (5) or sub-section (6), as the case may be, of Section 46 of the tax and/or penalty in respect of which the appeal has been preferred, the appeal may be summarily rejected: Provided that no appeal shall be summarily rejected under this sub-rule, unless the appellant is given an opportunity to amend such memorandum of appeal so as to bring it into conformity with the requirements of Rule 58. (2) An appeal may also be summarily rejected on any other ground which should be reduced in writing : Provided that before an order summarily rejecting an appeal under this sub-rule is passed, the appellant shall be given a reasonable opportunity of being heard. (3) Where an appeal is summarily rejected under sub-rule (1) on the ground that the appellant had failed to pay in accordance with the provisions of sub-section (5) or sub-section (6), as the case may be, of Section 46 or sub-section (5) of Section 53 the amount of tax and/or penalty in respect of which the appeal has been preferred, the Appellate Authority, the Appellate Board or the High Court may, where, it is subsequently brought to its notice that the said amount was paid before filing the memorandum of appeal but the proof of payment was not furnished therewith, readmit the appeal subject to the provisions of sub-section (8) of Section 46. 8. In view of aforesaid specific provision the appeal preferred by the assessee can be re-admitted on production of proof of the deposit of requisite amount. In the present case, we find that the petitioner has deposited Rs. 16,64,000/- though not within time period as provided under the Act, but it appears that now required amount has been deposited by the petitioner, necessary for the admission of the appeal. 9. In the present case, we find that the petitioner has deposited Rs. 16,64,000/- though not within time period as provided under the Act, but it appears that now required amount has been deposited by the petitioner, necessary for the admission of the appeal. 9. In view of aforesaid, we extend the time for deposit of requisite statutory amount till 22.11.2011, the date on which petitioner has deposited the amount in four instalments and accordingly this petition is finally disposed of with following directions :- The appellate authority -Deputy Commissioner, Commercial Tax, Chhindwara on due satisfaction that the requisite amount as required under section 46(5) of the Act, has been deposited, re-admit the appeal and after re-admission of the appeal shall proceed with the appeal, in accordance with law. 10. With the aforesaid direction, this petition is finally disposed of, with no order as to costs.