AI Structured Summary
Not yet generated for this judgment
Judgment
Ramesh Ranganathan, CJ
Heard Sri V.K. Kaparwan, learned counsel for the appellant-writ petitioner and Sri C.S. Rawat, learned Additional Chief Standing Counsel for the State Government.
This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (M/S) No. 301 of 2013 dated 19.06.2019.
The appellant herein had filed Writ Petition (M/S) No. 301 of 2013 seeking a writ of certiorari to quash the order dated 09.11.2012 issued by the second respondent; and for a mandamus commanding the respondents not to enforce the letter dated 18.03.2009 retrospectively.
The order dated 09.11.2012 is an order of assessment passed by the Assessing Authority. On its validity being subjected to challenge, the learned Single Judge, in the order under appeal, held that the appellant-writ petitioner had a statutory remedy of preferring an appeal, against such an assessment order, under Section 51 of the Uttarakhand VAT Act, 2005.
Sri V.K. Kaparwan, learned counsel for the appellant-writ petitioner, while fairly stating that the remedy of preferring an appeal would no doubt lie under Section 51 of the Uttarakhand VAT Act against an assessment order, would however contend that the appellant-writ petitioner has also challenged retrospective application being given to the Circular dated 18.03.2009; and a challenge thereto cannot be made before the Assessing Officer.
While we find force in the submission of Sri V.K. Kaparwan, learned counsel for the appellant-writ petitioner, that the validity of the Circular, issued by the Government dated 06.03.2009, cannot be challenged before the Assessing Authority, a bare perusal of the said proceedings dated 06.03.2009 would show that all that has been clarified therein is that the definition of 'sale price' in Section 2(42) of the Uttarakhand VAT Act would include any sum charged for any work in respect of goods, and would include any sum charged for anything done by a dealer in respect of goods at the time or before the delivery thereof. The 'Mandi Fee' would undoubtedly fall within its ambit. All that the proceedings dated 06.03.2009 clarifies is that the Mandi Fees paid by a dealer, and which he has passed on to his customers, shall be included in the sale-price.
Clarificatory orders are retrospective in character, and would apply to the definition of a 'sale price' from the date on which the said definition was included in the Act. The definition of 'sale-price', in Section 2(42) of the Uttarakhand VAT Act, includes any sum charged for anything done by a dealer in respect of goods at the time or before the delivery thereof, excise duty, special excise duty, or any other duty or tax, but shall not include the sums mentioned in clauses (a) to (c). It is not even the appellant-writ petitioner's case that they fall within any of the exceptions in clauses (a) to (c) in sub-section (42) of Section 2. Since any sum charged for any thing done by the dealer in respect of goods at the time or before the delivery thereof, excise duty, special excise duty or any other duty or tax falls within the ambit of 'sale-price', notwithstanding the Circular dated 06.03.2009, Mandi Fees would fall both within "a sum charged by the dealer before the delivery of the goods", or "any other duty". The clarification given, by the proceedings dated 06.03.2009, is only to explain / clarify, and is not a fresh stipulation. Consequently, the contention that it has no retrospective application does not merit acceptance. We find no error, therefore, in the order of the learned Single Judge warranting interference in an intra-Court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules.
It is represented by Sri V.K. Kaparwan, learned counsel for the appellant-writ petitioner, that 50 per cent of the tax due has already been deposited pursuant to the interim order passed by this Court. Such amounts, deposited pursuant to the interim order of this Court, shall be taken into consideration in computing the minimum amount required to be deposited for an appeal to be entertained.
Subject to the aforesaid observations, the Special Appeal fails and is, accordingly, dismissed.
Needless to state that it is always open to the appellant-writ petitioner to raise all such contentions as are available to them in law, against the assessment order, before the appellate authority.