CW15618/2010 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.15618/2010 Reckitt Benckiser (India) Pvt. Ltd Vs. The State of Rajasthan and Others Date of Order ::: 06.12.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Alok Sharma, Counsel for petitioner Shri R.B. Mathur, Counsel for respondents #### By the Court:- Petitioner has filed this writ petition against demand-notice dated 28.10.2010 with grievance that while he has filed appeal against assessment order which is accompanied by stay application, but his appeal has not been taken up for arguments and then no order on stay application has been passed. Learned counsel referred to proviso to sub-section (4) of Section 38 of the Rajasthan Value Added Tax Act, 2003 and argued that according to that proviso where application for stay is not disposed of within a period of thirty days from its filing and delay is not attributable to applicant, same shall be deemed to have been accepted subject to condition that such dealer or person furnishes sufficient security to satisfaction of Assessing Authority or officer, as the case may be, in such form and in such manner as may be prescribed. It is contended that so far no CW15618/2010 // 2 // order has been passed on stay application filed by petitioner. Shri R.B. Mathur, learned counsel for respondents opposed writ petition and submitted that appeal/stay application is likely to be taken for hearing up tomorrow. He further submitted that demand notice could be issued immediately after assessment order was framed without awaiting any order on stay application filed by petitioner with his appeal. I am not inclined to uphold this argument because intention of legislature is to ensure that stay application filed by assessee along-with his appeal receives consideration and decided either way within a period of thirty days from date of its filing provided delay caused in doing so is not attributable to the assessee and if that is not done, the same shall be deemed to have been accepted subject to condition of his furnishing sufficient security to assessing authority. Having regard to mandatory language contained in proviso to sub-section (4) of Section 38 of the Act aforesaid, since so far stay application filed by petitioner with his appeal has not been disposed of, the demand cannot be enforced against him till disposal of stay petition or appeal. It is further clear from language of the proviso that in case stay application is not disposed of within thirty days and delay of indecision is not attributable to applicant, same CW15618/2010 // 3 // shall be deemed to have been accepted. Recovery, in such circumstances, cannot be enforced till disposal of stay application or otherwise if period of thirty days expires within that time and stay application is not disposed of, the petitioner may be required to furnish sufficient security to satisfaction of assessing authority or officer, as the case may be, in such form and in such manner as may be prescribed. This writ petition is therefore disposed of in terms aforesaid subject to however any order that appellate authority might pass in petitioner's appeal. The demand notice for aforesaid period of thirty days shall not be enforced against petitioner. In case stay application/appeal of petitioner is dismissed, the respondents will be free to issue fresh demand notice to petitioner in accordance with law. (Mohammad Rafiq) J. //Jaiman//