1 Entry tax matters IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B.Civil Writ Petition No.13165/2008 M/s. Govind Bura Udyog, Dausa Versus State of Rajasthan and another Date of Order ::: November 21, 2008 Hon'ble Mr. Prem Shanker Asopa, J . Mr. Mahesh Gupta, for the petitioners Mr.J.M.Saxena, Addl.AG with Mr.Dharmendra Pareek, for the State Issue notice to the respondents. Mr.J.M.Saxena, Addl. AG is directed to accept the notices. With the consent of counsel for both the parties, these writ petition is being decided at the admission stage. The counsel for the petitioner has placed reliance on a Division Bench's judgments of this Court in the case of M/s. Dinesh Pouches Ltd. Vs. State of Rajasthan and others, reported in 2007 (4) WLC 719 and in the case of M/s. Godfrey Phillips India Limited and another Vs. State of Rajastha and another, (DB Civil Writ Petition No.6489/1999, decided on 18.01.2008), whereby the entry tax has been declared unconstitutional, whereas the learned counsel for the respondents has placed reliance on a subsequent 2 Entry tax matters judgment of the Division Bench of this Court in the case of Laxmi Cement Vs. The State of Rajasthan and others, (D.B. Civil Writ Petition No.739/2004), wherein the matter has been referred to the Full Bench on the same issue of levy and recovery of the tax. After the aforesaid judgments, a Co-ordinate Bench of this Court on 31.01.2008 in the case of M/s. L.G. Electronics India Pvt. Ltd., Vs. The State of Rajasthan and Another, (S.B. Civil Writ Petition No.729/2008) dismissed the writ petition with a direction to continue the undertaking till 15.02.2008. Placing the reliance on M/s. L.G. Electronics India Pvt. Ltd. (supra) this Court dismissed the writ petition filed by the Triumph Motors in the same matter on 21.05.2008. The relevant portion of the said judgments dated 15.2.2008 and 21.05.2008 are as follows:- “It is not in dispute that in the case of M/s. Dinesh Pouchers, the Division Bench of this Court has declared the provisions of Act of 1999 to be ultra vires, but merely on that ground the present petition cannot be maintained because the Hon'ble Apex Court vide their order dated 12.10.2007 and 23.10.2007 made it clear that the judgment in the case of M/s. Dinesh Puches dated 12.10.2007 shall operate in respect of `tax payers' who moved to the High court in writ petition and their writ petitions are disposed of by the High Court.” In view of the said order, now the respondents have raised objection regarding maintainability of the writ petition because according to them the order of Apex Court means that despite of holding a provision 3 Entry tax matters to be ultra vires since application of the said judgment has been kept limited to the writ petitioners who's petition was disposed of, the present petitioners cannot take benefits of the judgment in the case of M/s. Dinesh Pouches. According to respondents unless the order of Hon'ble Apex Court is clarified in favour of the petitioners or in the alternatively they also get a judgment holding the provisions of the Act of 1999as ultra vires, benefit of the judgment of M/s. Dinesh Pouches cannot be made admissible to them. It is further been submitted that even the respondents have issued Circular under challenge in few matters precisely for the reason that as per true interpretation of the order of the Apex Court order in the case of M/s. Dinesh Pouches pending SLP cannot be made applicable to all the tax payers including the petitioners. In my opinion, there is a weight in the argument of the learned counsel for the respondents and otherwise also to make things very clear, it was better for the petitioners to approach the Hon'ble Apex Court for necessary order more specifically when according to some of the petitioners, respondents have issued a circular after making wrong interpretation of the order of the Apex Court. Even if that is so then also necessary clarification can be made in that regard only by the Hon'ble Apex Court, therefore, only one of the petitioner has already moved along with an application to the Hon'ble Supreme court and otherwise if the judgment in the case of M/s. Dinesh Pouches is not allowed to be made applicable to all concerns other than those whose writ petition has already been disposed of in view of the order of the Supreme Court, this writ writ petition before the Single Bench is not otherwise maintainable because as per Hihg Court Rules the validity of the Act can be decided only by the Division Bench, thus even to seek some judgment as exit in the case of M/s. Dinesh Pouches, the petitioners have to approach the Division Bench, hence in any case the present writ petition is not maintainable, and in that regard, the arguments of learned counsel for the respondents are being accepted as otherwise discussed above. Thus all the writ petitions are dismissed, however with liberty to the petitioners to take appropriate remedy as is available to them for redressal of grievances. It is however, necessary to further add that during the pendency of the writ petition, an undertaking was given by the learned Additional Advocate General of the State Government for not 4 Entry tax matters effecting coercive method for recovery of amount, the said undertaking is extended till 15.02.2008 with the consent of the learned Additional Advocate General so that the petitioners may avail the other remedies available to them during that period, if not availed already.” Submission of Mr. Dinesh Yadav is that since the ultra vires part has not been stayed by the Supreme Court, therefore, no recovery can be made. Submission of Mr. Bharat Vyas, Addl.A.G is that identical writ petition was dismissed on 30.01.2008 by the co-ordinate Single Bench of this Court in the case of M/s.LG Electronics India Pvt.Ltd. (Supra) and after considering the entire controversy the writ petition was dismissed. Although the present writ petition was filed on 29.04.2008 but there is no reference of the aforesaid judgment dated 30.01.2008. Having gone through the entire controversy and all aforesaid judgments and the latest judgment of the Coordinate Bench dated 30.01.2008, I am not inclined to take different view. Consequently, the writ petition is dismissed. In the present case, in order to enable the writ petitioner to file special apeal,I grant ten day's time and implementation of this judgment is deferred for a period of seven days. Till then, status-quo shall be maintained.” Against the said order, the Triumph Motors filed a special appeal, which was registered as D.B.Special Appeal (W) No.1109/2008, wherein the interim order was passed of staying the recovery from the appellant on 04.08.2008. Following the judgment in Triumph Motors V. The State of Rajasthan and others (SBCWP No.4197/2008) one more writ petition – SBCWP No. 6690/2008 5 Entry tax matters M/s.Vishnu Trading Co. V. State of Rajasthan was decided on 23.10.2008 wherein the recovery was stayed till 11.11.2008 in order to enable the petitioner in the said writ petition to file special appeal. The petitioner – M/s. Vishnu Trading Co. filed D.B. Special Appeal (Writ) No.1841/2008 wherein interim order was passed on 5.11.2008 for staying recovery. In view of the judgment of the co-ordinate Bench in M/s. Triumph Motors (supra) and Vishnu Trading Co. (supra), the writ petition is dismissed and three weeks' time is granted to enable the petitioner to file special appeal and seek appropriate orders. (Prem Shanker Asopa, J. Gopal All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed. Gopal Lal Sharma Private Secretary