Chhattisgarh Distilleries Limited and Another Vs Commissioner of Sales Tax and Another

@JUDGMENTTAG-ORDER

A.M. Sapre, J.@mdashThe only question involved in this writ filed under Articles 226 and 227 of the Constitution of India is, whether the order passed by the Commissioner u/s 42-A of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed) on January 6, 1993 (annexure P14) is legal or/and proper.

2. Section 42-A of the Act under which the petitioner had made an application to the Commissioner and the same having been rejected by the Commissioner by the impugned order (annexure P14) reads as under :

"Section 42-A : Power of Commissioner to stay certain proceedings.--The Commissioner may, by special or general order, pending examination of any question of law,--

(i) before him ; or

(ii) before the Tribunal on an application made under Sub-section (1) of Section 44 ; or

(iii) before the High Court on an application made under Subsection (2) of Section 44 ;

stay any proceeding or proceedings u/s 18, or Section 19 in respect of any dealer or class of dealers."

3. Perusal of Section 42-A would indicate that it empowers the Commissioner to stay proceedings u/s 18 or Section 19 in respect of any dealer if he is able to satisfy the Commissioner that some question of law relating to any issue which has a bearing over the assessment proceedings is pending consideration either before the Commissioner or before the Tribunal on an application made u/s 44 or before High Court u/s 44(2). So the main object of enacting Section 42-A is to stay proceedings awaiting the outcome of proceedings, where any examination of question of law is pending. The object behind grant of stay is that once the issue of law is decided one way or other by those specified authority before whom it is pending then the assessing authority who is seized of the assessment proceedings is able to complete the assessment proceedings in the light of the decision given by the authority on a question of law.

4. Coming to the facts of this case, when the petitioner made an application u/s 42-A before the Commissioner, it appears to be totally misconceived and untenable in law. Indeed, even according to petitioner there was no application made or pending before any of the specified authority. This is clear from the observation made by the Commissioner in the impugned order in para 9 :

^^vkosnd dh vksj ls lquokbZ ds le; ;g Lohdkj fd;k x;k fd buds }kjk orZeku vkosnu izkarh; vf/kfu;e dh fdlh vU; /kkjk ds vUrxZr izLrqr ugha fd;k x;k gS] dsoy /kkjk 42&, ds vUrxZr gh izLrqr fd;k x;k gS vkSj bl izdkj /kkjk 42&, ds vUrxZr tks ''kCnkoyh nh gS mlls Li"V gS fd vkosnd dk iz''u bl /kkjk ds vUrxZr fopkj.kh; ugha gksrk gS] oju vf/kfu;e ds fdlh vU; izko/kkuksa ds vUrxZr dksbZ fof/k dk iz''u fopkj.kh; jgus dh fLFkfr /kkjk 42&, ds vUrxZr LFkxr ds iz''u ij fopkj djrs gq, LFkxr fn;k tk ldrk gS vkSj bl izdkj fdlh vU; mi;qDr izko/kku ds vUrxZr fof/kd iz''u ijh{k.k gsrq yafcr ugha gksus dh fLFkfr esa vkosnd dk vkosnu fopkj.kh; ugha gks ldrkA**

5. What more is needed to uphold the impugned order except the only finding recorded by the Commissioner supra. Indeed the very basis for invoking Section 42-A was missing in the application made by the petitioner and hence not only the application made by the petitioner u/s 42-A was misconceived but even this petition too. In other words, I am inclined to observe that if invocation of Section 42-A by the petitioner was bad, then invoking the writ jurisdiction by filing the writ was worst. In my opinion, the Commissioner was perfectly justified in rejecting the application so made by the petitioner because admittedly no proceedings involving decision to be given on any question of law were pending before any of the authorities, i.e., Commissioner, Tribunal or High Court.

6. Perusal of petition shows that the petition is full of those facts which are totally foreign to the requirement of Section 42-A ibid. In other words, what is required to be pleaded for making out a case u/s 42-A is totally missing in the petition.

7. To conclude, I find no merit in the writ. It is accordingly dismissed with costs Rs. 1,500.