East India Hotels Ltd. and Another vs State and Another

R.P. Sethi, J.—The short point to be decided in this case is as to whether the respondents could have directed the recovery of interest u/s

18(3) of the General Sales Tax Act despite there being a stay order passed by this Court directing that the recovery, if any, pursuant to the final

assessment order, shall not be made till further orders.

As the question raised is purely a question of law, there is no necessity of giving the facts, and circumstances under which the writ was filed

which are almost admitted by both the parties.

I have heard the learned counsel for the parties and have perused the record.

Mr. Bhasin, the learned counsel, has produced an order of the Honourable Supreme Court passed in C. M. P. No. 2800-01 of 1983 dated

14th November, 1983 between the parties in this writ petition to show that the interest could not be directed to be levied for non-filing of return u/s

12(1) and non-payment of tax u/s 12(3) of the General Sales Tax Act. The learned counsel appearing for the respondents has submitted that the

aforesaid order of the Honourable Supreme Court provided for an interim arrangement and did not decide the case between the parties with

respect to the subject-matter of the present writ petition. It is true that this Court vide its order dated 26th June, 1981 directed :

Issue notice. It is directed that the assessment proceedings shall continue and if the final order of assessment is passed before the disposal of this

petition, the recovery, if pursuant to the final assessment order, shall not be made till further orders.

However it does not mean that the court decided that the petitioners would not be liable to pay the interest under the statute either on account of

the pendency of the writ petition or in case of its dismissal. Writ Petition No. 209 of 1981 in which the order was passed has since been dismissed

on merits, without any direction regarding the payment or nonpayment of interest in terms of Section 8(3) of the General Sales Tax Act. If a litigant

succeeds in getting a stay regarding the payment of the revenues to the State, he does it at his own risk and cost and is liable to pay such interest or

penalty as is provided by law for non-payment of the amount in time or non-filing of the returns within the stipulated period. A litigant approaching

the court succeeds in getting the order of stay particularly when the other side is not represented at his own risk and cost and if he is found not

entitled to it ultimately, he cannot be given the premium for non-payment of the aforesaid amount along with statutory interest under the cloak and

cover of the stay obtained from the court. Such a litigant undertakes the risk for non-payment of the amount at his own risk and responsibility. The

assessee cannot be held to be entitled for non-payment of the penalties arising out of or provided under a statute merely on the ground of his filing

a writ petition and obtaining a stay order. A clever businessman would earn much more than the amount withheld on account of the stay order

obtained during the pendency of such stay order and would not be justified in refusing to make the payment of amount of interest which he is liable

to pay under the statute. Under such circumstances the Honourable Supreme Court in Haji Lal Mohd. Biri Works, Allahabad through Abdul

Hamid Vs. The state of U.P. and Others, held :

Argument has also been advanced by Mr. Sen that the interest on arrears of sales tax could not be realised for the period during which the

recovery of sales tax was stayed. We find it difficult to accede to this contention because there is nothing in the language of Section 8(1-A) of the

Act which prevents the running of interest because of the operation of any stay order. Indeed, the liability to pay interest is created by the statute

and the Sales Tax Officer has no discretion to grant any exemption from the payment of interest.

In view of the clear provisions of the General Sales Tax Act and the judgment of the Honourable Supreme Court, there is no merit in this

petition which is hereby dismissed with costs which are assessed at Rs. 500.