Dr. D.Y. Chandrachud, J.

Rule, made returnable forthwith. With the consent of learned Counsel and at their request the Petition is taken up for hearing and final disposal.

2. The constitutional validity of Section 48(5) of the Maharashtra Value Added Tax Act, 2002 (MVAT Act, 2002) is in challenge. In the alternative, if its validity is upheld, the Petitioner seeks that the words “actually paid” be read down to mean “ought to have been paid”. The Petitioner challenges an order of assessment and seeks a mandamus to the State to recover from the vendor tax paid on goods of which a set off is claimed. Consequential orders of set off and refund are sought.

Facts

3. The Petitioner which is a partnership firm and a dealer registered under the MVAT Act, 2002, carries on business as a reseller in cotton bales. For 2009-10, the Petitioner filed its returns and, based on the purchases effected by it, claimed Input Tax Credit (ITC) by way of a set off under Section 48. According to the Petitioner, the claim was supported by tax invoices of its vendor. On 4 December 2010, the Petitioner claimed a refund of Rs.21.08 lakhs, resulting from the return filed. The Petitioner claims to hav