1 W.P. No.2271 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Writ Petition No.2271 Of 2010 * M/s. Rameshwar Sahakari Sakhar Karkhana Ltd. Raosahebnagar, Post Sipora Bazar, Taluka Bhokardan, District Jalna, Through is Manager Director Dharamraj Bhavrao Shewale. .. Petitioner. Versus 1) The State of Maharashtra, Through its Chief Secretary, Finance Department, Mantralaya, Mumbai. 2) Sugarcane Purchase Tax Officer, Jalna, District Jalna. .. Respondents. -------- Shri. N.L. Chaudhari, Advocate for petitioner. Shri. S.K. Kadam, Assistant Government Pleader, for respondent Nos.1 and 2. -------- CORAM: NARESH H PATIL & T.V. NALAWADE, JJ. Order reserved on : 28th SEPTEMBER 2011 Order pronounced on : 04th OCTOBER 2011 ORDER (Per Naresh H Patil, J.): 1) Heard. 2 W.P. No.2271 of 2010 2) Learned counsel appearing for the petitioner, Shri.N.L. Chaudhari, submits that the Maharashtra Purchase Tax on Sugarcane Act 1962 was repealed in the year 2002 and the Government, without following due procedure of law under Section 55 of the Maharashtra Value Added Tax (Levy and Amendment) Act 2005, revived the Maharashtra Purchase Tax on Sugarcane Act 1962. It was wrong on the part of the authorities to make assessment for the period from 2nd November 2001 to 30th November 2009. The Maharashtra Purchase Tax on Sugarcane Act 1962 was not in existence for the period from the years 2002 to 2005. Deletion of sub section (1) of clause (c) of the Maharashtra Value Added Tax (Levy and Amendment) Act, 2005 is colourable exercise of power by the Government, which is not permissible in law. The counsel submits that in view of the assent given by the President of India to the Maharashtra Value Added Tax Act, 2002 the State Government is not competent to extend the date of operation of the Act by issuing further notification. 3 W.P. No.2271 of 2010 3) The State has filed affidavit-in-reply. The deponent in paragraphs 8,9,10 and 11 of the reply has contended as under : “8. I say that, the State Legislature has powers to amend the Act after having been assented to by the President or Governor so as to postpone the enforcement of the said Act. When both Houses of State Legislature are not in Session, the Governor has powers, under Article 213 of the Constitution of India, to promulgate an Ordinance to amend any Act. 9. I say that, by clause [c] of sub-section (1) of section 95 of the Principal Act (Maharashtra Act IX of 2005), it was proposed to repeal the Maharashtra Purchase Tax on Sugarcane Act, 1962. However, before coming into force the provisions of Maharashtra act IX of 2005 relating thereto, it was amended and the said provision was deleted and never came into force. 10. I say that, the challenge to the constitutional validity of the provisions of section 55 of the Maharashtra Act XIV of 2005 has already been decided by this Hon’ble Court, Bombay in Civil Writ Petition No.7356 of 2011 filed by Vithal Sugar Manufacturing Ltd of Solapur District on 8th September 2011. The Hon’ble Court held that there is no merit in the challenge. The Hon’ble Court has discussed the issue in Paras 3, 4 and 5 of the Judgment. It is declared that the repealing provisions of section 95(1)(c) were never brought into force. 11. I say that, in Civil Writ Petition No.7356 of 2011, the Hon’ble Court has also held that the action of the authorities in seeking enforcement of the liability to pay for assessment years 2008-09, 2009-10 and 2010-11 is in order.” 4 W.P. No.2271 of 2010 4) Learned Assistant Government Pleader Shri. Kadam has placed on record a copy of the order passed by Division Bench (Coram: Dr. D.Y. Chandrachud and A.A. Sayed, JJ.) dated 8th September 2011 in Writ Petition No. 7356 of 2011 (M/s Vithal Sugar Manufacturing Ltd. v. State of Maharashtra and Others). The learned counsel submits that, the issue raised in the present writ petition is already addressed by the Division Bench in the case of M/s Vithal Sugar Manufacturing Ltd. (supra). In the light of the order passed by the Division Bench the issue is no more res integra and the petition deserves to be dismissed. 5) We have perused the provisions of the Act, the Notification and the order placed before us. We have perused the order passed in the case of M/s Vithal Sugar Manufacturing Ltd. (cited supra). We may reproduce paragraph 5 of the order passed by the Division Bench. “5. There is no merit in the challenge. Section 95(1)(c) of the MVAT Act 2005 provided for the repeal of the Maharashtra Purchase Tax on Sugarcane Act 1962. However, as noted earlier, the provisions of the MVAT Act, 2002 were not brought into force by the State Government upon its enactment. In 2005 the State Legislature enacted 5 W.P. No.2271 of 2010 the Amending Act. The Amending Act provided that the MVAT Act 2002 would come into force from 01 April 2005. Simultaneously, the State Legislature provided for the deletion of clause (c) of Sub- section (1) of Section 95, in Section 55 of the Amending Act 2005. The net consequence was that simultaneously with the enforcement of the MVAT Act 2002, the repealing provisions contained in Section 95(1) stood amended so as to delete a reference to the repeal of the Maharashtra Purchase Tax on Sugarcane Act, 1962. The State Legislature was within its plenary power to do so. As a matter of fact, the repealing provisions of Section 95(1)(c) were never brought into force. Simultaneously with the enforcement of the MVAT Act 2002 on 01 April 2005, the repealing provisions were reconstructed so as to exclude a reference to the repeal of the Purchase Tax Act. Hence, there is no merit in the first submission.” 6) In the light of the reply filed and the observations made by the Division Bench, we are convinced that the issue raised in the petition has already been addressed. There is no merit in the writ petition. 7) The writ petition is rejected. Sd/- Sd/- (T.V. NALAWADE, J.) (NARESH H PATIL, J.) rsl