AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.414 OF 2009 ACMEVAC Sales Private Limited. ... Petitioners Vs. The State of Maharashtra & Ors. ... Respondents Ms. Nikita Badheka with Mr. M.M. Vaidya for the petitioners. Mr. B.H. Mehta for the respondents. CORAM : SMT. RANJANA DESAI & J.P. DEVADHAR, JJ. DATED : 20TH MARCH, 2009. P.C.:- 1. The petitioners have challenged the ex-parte dismissal order of the Maharashtra Sales Tax Tribunal (For short, “the Tribunal”) in Second Appeal Nos.1163 and 1164 of 2000 dated 22/9/2006 for the financial year 1994-95 under the Bombay Sales Tax Act, 1959 and Central Sales Tax Act, 1956. 2. The petitioners have also challenged the ex-parte order passed in Miscellaneous Application No.169 of 2000 dated AJN 2 22/9/2006. The miscellaneous application was filed by the petitioners praying for condonation of delay in filing the appeals for 1994-95. On the same day i.e. on 22/9/2006, the Tribunal also dismissed ex-parte, the Second Appeal No.832 of 2003 dated 22/9/2006 for the period 1995-96 for non-attendance of the petitioners. The petitioners have challenged the said order also. 3. On 13/4/2007, against all the orders mentioned hereinabove, restoration application was filed. The Tribunal rejected the restoration application as being beyond time by 12-13 days. The petitioners have challenged the ex-parte orders of the Tribunal on diverse grounds. 4. The petitioners have also challenged Rule 61(2) as ultravires and unreasonable insofar as it provides for ex-parte dismissal without passing order on merit. The petitioners have relied on judgment of the Supreme Court in Commissioner of Income-tax vs. S. Chenniappa Mudaliar 74 ITR 41 (SC). 5. The petitioners have prayed that in the interest of justice, AJN 3 orders of the Tribunal being Exhibits-”E”, “D” and “H” be set aside with a direction to the Tribunal to hear the Second Appeals for 1994-95 under Bombay Sales Tax Act and Central Sales Tax Act and Second Appeals for 1995-96 under the Central Sales Tax Act on merits. 6. We have heard learned counsel for the petitioner. She reiterated that in the interest of justice, the impugned orders being ex-parte, may be set aside. She further submitted that the petitioners are willing to deposit the sales tax liability to the extent of Rs.10 lakhs. She submitted that out of the tax liability, a sum of Rs.4 lakhs will be deposited by 5/4/2009 and rest of the amount will be deposited in five monthly instalments of Rs.1,20,000/- each. Learned counsel states that the first of such instalments will be paid by 5/5/2009 and, thereafter, on 5th of every succeeding month, the remaining instalments will be paid. Learned counsel for the respondents states that an undertaking to the above effect may be obtained from the petitioners before the attachment levied on the bank accounts of the petitioners is lifted. 7. The petitioners have tendered in the court Undertaking dated 19/3/2009 to the above effect. The said undertaking is accepted by AJN 4 us. The petitioners shall abide by the undertaking which we have accepted. After paying the instalments, the petitioners shall obtain necessary challan and submit it to the Assessing Officer for verification. In view of the above undertaking, the delay is condoned. The impugned orders which are ex-parte are set aside in the interest of justice. The appeals at Exhibits-”D” and “H” are remanded to the Tribunal for de novo consideration and the Tribunal shall consider the matter in accordance with law and on merits. In view of the undertaking filed by the petitioners, the attachment levied on the petitioners bank accounts shall be lifted. 8. Needless to say that if the petitioners make any two defaults in payment of instalments, this order shall cease to operate and the impugned orders shall stand revived. The bank accounts of the petitioners shall be then reattached. The petition is disposed of. [SMT. RANJANA DESAI, J.] [J.P. DEVADHAR, J.]