1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APELLATE JURISDICTION WRIT PETITION NO. 3366 OF 2007 Nitin Sitaram Borade & Ors. .. Petitioners V/s State of Maharashtra & Anr. .. Respondents Mrs. Anjali N. Helekar for the Petitioners. Mr. V.A. Sonpal, A.G.P. For the respondents. CORAM : FERDINO I. REBELLO & D.G. KARNIK, JJ. DATE : 14TH AUGUST 2009 JUDGMENT : (Per D.G. Karnik, J.) 1. By this petition, the petitioners challenge the notification dated 21st November 2005 issued by the respondent no.2, the Commissioner of Sales Tax, Maharashtra State under section 17 of the Maharashtra Value Added Tax Act, 2002 (for short “MVAT Act”). 2. Learned counsel for the petitioners canvassed two grounds of challenge. She firstly submitted that the exercise of power by the respondent 2 no.2 in issuing of the notification was not in conformity with sections 3, 16 and 17 of the MVAT Act. Secondly, she submitted that by the notification dated 21st November 2005, the Commissioner directed that in case of the dealers under the Bombay Sales Tax Act who did not make an application for registration under MVAT Act before 31st December 2005, their existing certificates shall stand cancelled with effect from 1st January 2006. The time given was only 40 days which was too short and therefore the notification was invalid. 3. Prior to the year 2002, there existed several laws in the State of Maharashtra relating to imposition of tax on sales, such as the Bombay Sales of Motor Spirit Tax Act, 1958, the Bombay Sales Tax Act, 1958, the Maharashtra Sales Tax Act, 1979 and the Maharashtra Sales Tax on the Transfer of Property in Goods involved in the Execution of Works Contract (Re-enacted) Act, 1989. With a view to consolidate and amend the laws relating to the levy and collection of tax on the sale or purchase of certain goods in the State of Maharashtra, the Legislature of Maharashtra enacted the MVAT Act (Maharashtra Act No.9 of 2005) which came into force with effect from 1st April 2005. 4. Section 16 of the MVAT Act provides that no dealer shall, while being liable to pay tax under the Act, shall be engaged in the business as a dealer unless he possesses a valid certificate of registration as provided under the 3 MVAT Act. Second proviso to section 16 provides that if any dealer who holds the certificate of registration granted under the Bombay Sales Tax Act, 1959 which is effective or valid immediately before the appointed day, it shall not be necessary for him to apply for a fresh certificate so long as the said certificate is not duly cancelled under the Act. Third proviso to section 16 further provides that a dealer holding an effective certificate of registration or a licence granted before the appointed day under any law other than the Bombay Sales Tax Act, 1959, shall, notwithstanding the fact that he is holding such effective certificate, be required to apply for grant of certificate of registration under the Act. Section 17 of the MVAT Act provides that every registered dealer, who holds on such date as the Commissioner may by notification in the Official Gazette specify, a certificate of registration, which is valid on the said date (hereinafter referred to as the existing certificate of registration), shall obtain in lieu of the existing certificate of registration a fresh certificate of registration as provided under this section. Sub-section (2) of section 17 provides that every dealer, who is required to obtain a fresh certificate of registration under sub-section (1), shall apply in such form, manner and time and to such authority as may be prescribed. 5. From the perusal of the provisions of MVAT Act, it is clear that every dealer who is liable to pay tax under the Act is required to obtain a valid certificate of registration as provided under section 16, failing which he is 4 not entitled to carry on business as a dealer. As a transitory provision, a dealer, who had held a valid certificate of registration under the repealed BST Act, was permitted to continue the business on the basis of existing certificate of registration without obtaining fresh certificate for some time. Section 17(1) of the MVAT Act empowers the Commissioner by notification in official gazette to specify a date for making an application for registration under the MVAT Act. Sub-section (4) of section 17 of the MVAT Act specifically states that all existing certificate of registration shall stand cancelled with effect from such date as the Commissioner may notify in the official gazette. Thus, the Commissioner has been granted power to cancel the existing certificates of registration (obtained under the Bombay Sales Tax Act) and require a dealer to obtain fresh certificate of registration from such date as may be notified by him. It is clear that the Commissioner has been given a power to specify a date by a notification in the official gazette from which previous certificate of registration stands cancelled. The impugned notification dated 21st November 2005 issued by the Commissioner is clearly in exercise of power conferred upon him under section 17 and in particular sub-sections (1), (4) and (5) thereto. We find no infirmity in the exercise of power by the respondent no.2 – Commissioner. The first contention of the petitioners is rejected. 6. The second grievance of the petitioners needs to be stated only to be rejected. The notification is dated 21st November 2005 and all existing 5 dealers were required to apply for fresh registration before 31st December 2005. In our view, sufficient time has been given for the dealers to apply for fresh registration under the MVAT Act. Counsel for the petitioners submitted that about 8000 dealers could not apply for registration within a specified time and that would cause great hardship to the petitioners. It may be noted that there were about four hundred thousand dealers under the MVAT Act. Almost all of them applied for fresh registration within time. Eight thousand is minuscule minority compared to large number of dealers who had complied with the requirement. In any event, inability of few of the dealers to apply within the specified time cannot invalidate the exercise of statutory power of issuance of notification by the respondent no.2. 8. For these reasons, there is no merit in the petition which is hereby dismissed. Rule discharged with no order as to costs. (D.G. KARNIK, J.) (FERDINO I. REBELLO, J.)