Vaishanavi Ispat Limited vs Senior Joint Commissioner, Sales Tax, Chowringhee Circle & Ors

Shekhar B. Saraf, J

This is an application under Article 226 of the Constitution of India wherein the writ petitioner has primarily sought the following prayers :

a) A declaration to the effect that the amendment made to Section 84 of the said Act by the West Bengal Finance Act, 2015 with retrospective effect from 1st April, 2015 and applicable mutatis mutandis to Section 9(2) of the Central Sales Tax Act, 1956 in the matter of appeal, is unreasonable, arbitrary, irrational, oppressive and unconstitutional;

b) A declaration to the effect that the second proviso to Section 84(1) of the West Bengal Value Added Tax Act, 2003 as substituted by the West Bengal Finance Act, 2015 and rules framed thereunder and applicable mutatis mutandis to Section 9(2) of the Central Sales Tax Act, 1956 in the matter of appeal, is unconstitutional and violative of provisions of Articles 14, 19, 21, 39A, 265, 300A of the Constitution of India;

c) A writ of and/or order and/or direction in the nature of Certiorari quashing and/or setting aside the purported order of audit dated 18-07 2017 passed by the respondent no.1 as well as consequential notice issued in Form 4V, under Section 9(2) of the Central Act read with Section 43 of the VAT Act.

With regard to prayers (a) and (b), a Coordinate Bench of this High Court in the case of M/s. Vatech Wabag Ltd. Vs. Deputy Commissioner of Sales Tax, Midnapure Charge & ors., reported in (2017) 100 VST 1(1) (W.P.1211(W) of 2016) has already decided these issues and held that Section 84 of the said Act is intra vires the Constitution. In light of the same, prayers (a) and (b) cannot be granted in favour of the petitioner.

With regard to prayer (c), it is clear that the petitioner did not object to the audit being carried out and took part in the said audit. Upon the order being passed on July 18, 2017, the petitioner filed an appeal before the appropriate forum. However, inspite of several opportunities granted, the petitioner did not pay the pre-deposit, and accordingly, in the year 2018 the appeal was dismissed for non-compliance of the second proviso of Section 84(1) of the West Bengal Value Added Tax Act, 2003.

The present writ petition has been filed on November 28, 2019 almost one year subsequent to passing of the appellate order.

I do not find any sufficient cause being made out for the delay and laches in filing of this writ petition. Furthermore, the petitioner is hit by doctrine of election as he has proceeded to appeal under the statute. Having not succeeded, he has now resorted to the writ jurisdiction. Upon exercising of my judicial discretion, I am of the view that the writ petitioner should not be allowed to agitate the above prayers so late in the day.

In light of the same, the writ petition is dismissed in limine. There shall be no order as to costs.

Since no affidavit-in-opposition is called for, allegations made in the writ petition are deemed not to have been admitted.

Urgent certified copy of this order, if applied for, be handed over to the parties on usual undertaking.