M/S. Tecnimont Pvt. Ltd. (Formerly ... vs State Of Punjab .

Civil Appeal No.7358 of 2019 @ SLP(C) No.27072 of 2016 M/s Tecnimont Pvt. Ltd. (Formerly known as Tecnimont ICB Pvt. Ltd.) vs. The State of Punjab and Others and with other connected matters 4 Explanation: For the purposes of this sub-section “additional demand” means any tax imposed as a result of any order passed under any of the provisions of this Act or the rules made thereunder or under the Central Sales Tax Act, 1956 (Act 74 of 1956).

(8) The appellate authority shall pass a speaking order while deciding an appeal and send copies of the order to the appellant and the officer whose order was a subject matter of appeal.”

In addition to the above tax, the ETO imposed penalties under section 53 and interest under section 32 of the PVAT Act, resulting in raising demand of Rs.26,52,79,716/-, Rs.27,64,73,245/- and Rs.22,18,31,454/- respectively for the aforesaid years. The petitioner challenged the order before this court by filing CWP No.21127 of 2011. Vide order dated 7.11.2012, Annexure P.2, this Court relegated the petitioner to the remedy of appeal. The petitioner approached the appellate authority i.e. the Deputy Excise and Taxation Commissioner (Appeals) by filing appeals under Section 62 of the PVAT Act for all the aforesaid assessment years. Alongwith the appeals, applications under Section 62 of the PVAT Act for stay of recovery of tax and entertainment of the appeals by dispensing with the requirement of pre- deposits had also been filed on the ground that financial position of the petitioner was very tight and there were no liquid assets so as to make payment of demand involved. Vide order dated 13.2.2013, the appellate authority directed the petitioner to make deposit of 25% of the additional demand in the government treasury by 27.2.2013 failing which the appeals would be dismissed in limine. Aggrieved by the order, the petitioner filed appeals before the Punjab VAT Tribunal (in short, “the Tribunal”). It was pleaded by the petitioner that its financial position was very poor and it was not in a condition to make payment of 25% and the losses incurred by the petitioner had been duly explained to the appellate authority. Since the petitioner had already paid voluntarily tax of Rs.1,97,05,910/-, Rs.1,88,34,187/- and Rs.1,94,93,597/- for the assessment years in Civil Appeal No.7358 of 2019 @ SLP(C) No.27072 of 2016 M/s Tecnimont Pvt. Ltd. (Formerly known as Tecnimont ICB Pvt. Ltd.) vs. The State of Punjab and Others and with other connected matters 7 question, the same should be adjusted against the additional demand created by the assessing authority. The Tribunal agreed with the contentions raised by the petitioner to the extent that the amount of voluntarily tax was required to be adjusted against the additional demand created by the assessing authority. However, the Tribunal while disposing of the appeals had observed that the petitioner was required to deposit 25% of the amount of tax, penalty and interest in terms of the order in the case of Ahulwalia Contracts India Pvt. Limited. Aggrieved by the order, the petitioner filed CWP Nos.17370 of 2013, 17031 and 17053 of 2013 which were disposed of vide order dated 31.10.2013, Annexure P.8. The petitioner was allowed to withdraw the writ petition so as to enable it to challenge the vires of Section 62(5) of the PVAT Act alongwith challenge to the orders passed by the Tribunal. Hence the instant writ petitions by the petitioner(s).”

25. As stated in P. Laxmi Devi10 and Har Devi Asnani11, in genuine cases of hardship, recourse would still be open to the concerned person.

26. In the premises, we accept the conclusions drawn by the High Court as regards questions (a) and (b) are concerned but set aside the view taken by the High Court as regards question (c). The appeals preferred by the assesses are therefore dismissed and those preferred by the State against the decision in respect of question (c) are allowed. No costs.

September 18, 2019.