1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1015 OF 2008 M/s The Bombay Tarpaulin Merchants’ Association and Anr. .. Petitioners V/s The State of Maharashtra & Anr. .. Respondents Mr. C.B. Thakkar i/b C.B. Thakkar & Co. for the Petitioners. Ms. S. Calcuttawala, A.G.P. For respondent nos.1 and 2. CORAM : FERDINO I. REBELLO & D.G. KARNIK, JJ. DATE : 7TH AUGUST 2009 JUDGMENT : (Per Ferdino I. Rebello, J.) 1. Rule. Heard forthwith. 2. The petitioner no.1 appears to be an Association of Traders engaged along with others in the activities of providing temporary tarpaulin sheds to industrial concerns. It is the contention of the Association that they look after general welfare activities of the 2 members of the Association. The petitioner no.2 is a partnership firm which is a member of the petitioner no.1 and is also involved in the same activities as carried out by other members of petitioner no.1. The petitioner no.2 is engaged in the activity of providing services of temporary sheds to its customers. For that purpose, the petitioner no.2 maintains stock of shed materials like bamboos, bullies, tarpaulin, coir and other materials. On receipt of order to provide temporary shed to cover the given area or object, the concerned person takes material on site, applies his labour and get the shed erected covering the given area or object. The petitioner no.2 is also required to maintain the shed during the contract period of providing shed services. The charges are in terms of the agreed rates and are based on per square foot area of the constructed shed. 3. The respondent State enacted the Maharashtra Sales Tax on Transfer of Right to Use any Good for any Purposes Act, 1985 (hereinafter referred to as “the Act”). By virtue of the provisions of the said Act, the tax is attracted on goods which are mentioned in the Schedule appended to the Act. The Schedule to the Act was amended on 1 st May 2001 and Entry 22 in the nature of residuary entry was inserted in the Act. Due to this insertion, leasing of any goods not covered by earlier Entries 1 to 21 became liable to tax. 3 4. The 1 st petitioner, being apprehensive about the attraction of liability upon its members regarding their activity of erecting temporary sheds, made representation to the Commissioner of Sales Tax, Maharashtra State by letter dated 23 rd July 2001 seeking clarification in respect of the said liability. The Commissioner of Sales Tax vide his letter dated 1 st October 2001 clarified that the activity of the members of the petitioner no.1 of providing temporary sheds does not amount to leasing activity within the meaning of the Act. It may be set out that the clarification was that the activity of the members of the 1 st petitioner are not covered within the ambit of Lease Act, 1985 as the activity was considered not amount to leasing of any goods. Thereafter, the petitioner no.1 received another communication on 18 th May 2005. By this communication, it was informed that the transactions of temporary sheds are covered by Lease Act / Maharashtra Value Added Tax Act, 2002 (MVAT Act, 2002). In holding that the transactions are covered by Lease Act, the Commissioner of Sales Tax relied on the judgment of the Supreme Court in Department of Telecommunication v. Union of India, 130 STC (1) SC. It is the contention of the petitioners that pursuant to this communication dated 18 th May 2005, the liability is thrust upon the members of the petitioner no.1 from 4 th February 2003, that is retrospectively. The 1 st petitioner addressed a letter dated 4 8 th June 2004 to the Commissioner of Sales Tax to reconsider the issue and withdraw the letter with retrospective effect. The Commissioner of Sales Tax by his communication dated 21 st September 2006 has denied to reconsider the issue. The 1 st Respondent has abolished the Lease Act, 1985 from 1 st April 2005 and introduced the Maharashtra Value Added Tax Act, 2002 with effect from 1 st April 2005. 5. On behalf of the respondent State, reply has been filed by Mr. Chandrakant Baburao Patil. It is set out therein that the petitioners herein have not availed of all legal statutory remedies. It is then pointed out that the members of the petitioner no.1 supply temporary tarpaulin sheds which are put by them for their industrial customers mostly in the rainy season by using bamboos, bullies, tarpaulin, coir and other materials for a specified period. The materials which are used for constructing the sheds by the petitioners are easily identifiable and they are deliverable and brought to the place of the customers of the petitioners for being put up as sheds at the premises of the customers of the petitioners. This activity of the members of the petitioners falls under the legal statutory provisions and is hence exigible to tax under the statute. He then pointed out that the letter dated 1 st October 2001 issued by the office of respondent no.2 was in response to the letter addressed by the petitioner on 23 rd July 2001 . 5 The Desk Officer of respondent no.2, therefore, issued the letter dated 1 st October 2001 in response to the letter of the petitioners. 6. We have heard the learned counsel for the parties. Though in the reply it has been set out that the response was given by the Desk Officer of the respondent no.2, there is no specific averment that the said reply was not approved by the Commissioner. The power to be exercised under section 52 of the Bombay Sales Tax Act if any question arises otherwise than in proceedings before a Court is the Commissioner. In these circumstances, the Commissioner can decide the question in terms of sub-section (1) of section 52 of the Act. There is also power on the Commissioner under section 52(2) to review his order, but in that event there has to be a compliance with the two provisos. 7. Admittedly, in the instant case, there has been non-compliance with the two provisos before the earlier communication of 1 st October 2001 was recalled by communication dated 18 th May 2005. 8. For the foregoing reasons, in our opinion, this petition can be disposed of by giving following directions: 6 (i) If the communication dated 1 st October 2001 was passed after approval of the Commissioner, then the Commissioner to comply with the procedure under section 52(2A) of the Bombay Sales Tax Act. (ii) If the order was not by the Commissioner in terms of section 52(2), the question of complying with section 52(2A) of the Bombay Sales Tax Act would not arise. The Commissioner then to inform the petitioners about the same. The petitioner no.1 and its members would then be free to take recourse to law for whatever relief they are entitled to. (iii) Rule is made absolute as above. No order as to costs. (D.G. KARNIK, J.) (FERDINO I. REBELLO, J.)