IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO. 531 OF 1988

Inder Kumar R. Gupta ..Petitioner.

v.

State of Maharashtra & Ors. ..Respondents.

Mr.P.S.Jetly i/by C.B.Kambli advs. For the petitioner.

Mr.V.A.Sonpal, AGP for the Respondent Nos.1 and 2.

Mr.U.J.Makhija, Sr.Counsel i/by Mulla & Mulla & C.B.C., adv. For the

respondent no.3.

CORAM : F.I. REBELLO &

J.H. BHATIA, JJ.

DATED : 12TH JUNE, 2009

P.C.

1

Heard.

2

Petitioner had purchased certain goods in an auction held by the

respondent no.3. He had paid sales tax at 15% in terms of demand made by the

respondent no.3. Subsequent thereto, petitioner applied to the respondent no.2

under the provisions of Section 52 of the Bombay Sales Tax Act for

determination of the rate of sales tax. It is the submission of the petitioner that

the rate is 4% and not 15%.

3

Instead of application being decided, a show-cause notice was issued to

the petitioner dated 24^th August, 1987 as to why the application ought not to be

rejected. Petitioner replied to the same. As the same was not decided, petitioner

moved this Court in the year 1988. Petition is pending since then.

4

The short question is whether the petitioner was entitled to move the

application under Section 52 of the Bombay Sales Tax Act. Relevant portion of

Section 52 reads as under:

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Section 52:

“If any, question arises, otherwise than

in proceedings before a Court, or

before the Commissioner has

commenced

assessment

or

reassessment of a dealer under Section

33 or 35, whether, for the purposes of

this Act -

(a).................

(b).................

(c)..................

(d)..................

(e)Any tax is payable in respect of

any particular sale or purchase, or

if tax is payable the rate thereof,

the Commissioner shall make an

order determining such question.”

5

It is, therefore, clear from the reading of the relevant provisions that the

application can be moved not only by a dealer but by any person who is liable

to pay tax. In the instant case, petitioner on the demand made by the respondent

no.3 has paid the tax. Issue before the respondent no.2 would be whether tax is

chargeable at 15% or as already paid by the petitioner or 4% as claimed by the

petitioner based on the documentary evidence, which is annexed to the petition.

Language of the section is clear. We find question of issuing show-cause notice

did not at all arise. Respondent no.2 at the highest could have dismissed the

application if it was not maintenable. Application could not have been kept

pending for all these years. In our opinion, considering the terminology used

any person and/or a dealer, an application both by any person or a dealer

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is maintenable.

6

In these circumstances, respondent no.2 is directed to dispose off the

application considering the reply filed by the petitioner within three months

from today.

7

Rule made absolute accordingly. No order as to costs.

(J.H. BHATIA,J.)

(F.I. REBELLO,J.)