IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.10910 of 2010 ==================================================== Bata India Limited, having its office at Bataganj, P.O. & P.S. Digha, Patna through its Manager (Accounts), Sunil Kumar Mishra, S/O Shri Awadh Narayan Mishra, R/O Vivekananda Park, South East Patliputra Colony, P.O. and P.S. Patliputra Colony District- Patna. …. …. Petitioner Versus 1. The State of Bihar. 2. The Commissioner of Commercial Taxes, having its office At Vikash Bhawan, Bailey Road, Patna. 3. The Commercial Taxes Officer, Special Circle, Patna having its office at Collectorate, South Gandhi Maidan, Patna. …. …. Respondents ==================================================== Appearance : For the Petitioner: Mr. D.V.Pathy, Advocate For the Respondent: Mr. Lalit Kishore, A.A.G.-3 ==================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 2. 16.9.2010. This petition under Article 226 of the Constitution has been filed by the assessee against the order of penalty imposed under Section 54(4) of the Bihar Value Added Tax Act, 2005. The matter at issue has been decided by this Court in the matter of Birla Corporation Ltd. V. State of Bihar (2009 (4) PLJR 663) by reading down the aforesaid Section 54(4) of the Act. The petitioner has challenged the order levying penalty made by the Assessing Authority, confirmed by the Appellate Authority. The order of the Appellate Authority is the subject matter of challenge in a revision application - 2 - before the Commercial Taxes Tribunal, Patna. There is no reason to believe that the learned Tribunal will not take into consideration the above referred judgment of this Court while considering the revision application filed by the petitioner. The petitioner has also challenged the validity of Section 36 of the Act. Learned Advocate Mr. D.V.Pathy has appeared for the petitioner. He has submitted that in so far as Section 36 of the Act does not take into consideration the taxes paid, it is violative of Article 286 of the Constitution. The question of constitutional validity of Section 36 of the Act requires consideration. We do appreciate the contention raised by Mr. Pathy. We may observe that Section 36 of the Act is not directly invoked in the present petition. The matter can be examined in a matter where it is directly in issue. For the aforesaid reason we do not express any opinion on the constitutional validity of Section 36 of the Act. As the matter is at large before the Tribunal below, Petition is disposed of. The petitioner may press the application for waiver of the deposit before the Tribunal. Pawan/- (R.M. Doshit, CJ) (Jyoti Saran, J)