STATE OF HARYANA Vs. MARUTI UDYOG LIMITED

JUDGEMENT

(1.) Leave granted.

(2.) What is the ambit and scope of the words "unable to pay the whole of the amount of tax assessed" used in proviso to sub-section (5) of Section 39 of the Haryana General Sales Tax Act, 1973, is the question of law requiring our interpretation in this appeal by special leave. It is contended on behalf of the appellant that the inability mentioned in the proviso refers to the financial position of the assessee, whereas the respondents contend that the words "unable" used in the Section is of wider amplitude being not restricted to only financial position of the assessee.

(3.) In order to determine the rival contention it is necessary to have a r_m_f the facts leading to the filing of the present appeal. The respondent, M/s. Maruti Udyog Limited a public limited company (hereinafter referred to as "the Company"), having its factory at Gurgaon in the State of Haryana is engaged in the business of manufacture and sale of various types of cars, namely, Maruti 800, Omni and Esteem, etc. along with their spare parts. The Company is a registered dealer under the Haryana General Sales Tax Act, 1973 (hereinafter referred to as the "Act") and the Central Sales Tax Act, 1956 (hereinafter referred to as the "Central Act") with the Excise and Taxation Officer, Gurgaon. For the Assessment Year 1986-87, the Company was assessed to tax by the Excise and Taxation Officer, Gurgaon vide his orders dated 20th November, 1990 under the Act and the Central Act. On 16th March, 1992, the Deputy Excise and Taxation Commissioner (I), Gurgaon served a notice on the company proposing to suo motu revise the assessment orders of the Excise and Taxation Officer, Gurgaon dated 20th November, 1990 on the grounds that the orders were illegal and improper for the reasons specified in the notice served. Subsequently, the suo motu revised assessment orders were passed enhancing the gross turnover of the Company by adding excise duty in the turnover returned by it and assessed by the Excise and Taxation Officer, Gurgaon disallowing part of the amount of rebate allowed by the Assessing Authority. The turnover of Omni product was taxed at the rate of 10% instead of 6% treating the same as "Vans". Aggrieved by the aforesaid order, the Company filed an appeal before the Haryana Sales Tax Tribunal (hereinafter referred to as the "Tribunal"), challenging the enhancement of turnover along with an application for stay of recovery of demand and entertainment of appeal without prior payment of tax and interest as required under sub-section (5) of Section 39. The application was rejected on 29th June, 1992 and the Company given time to deposit the entire amount within a period of one month.