PBA INFRASTRUCTURE LTD. Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Appellant is a company engaged in the construction of roads, bridges, culverts etc. Appellant is aggrieved by an order dated 11 th December 2020 passed by Maharashtra Sales Tax Tribunal (Tribunal) dismissing the appellant's appeal.

(2.) Appellant has been purchasing High Speed Diesel (HSD) from various parties since the year 2005. Appellant was of the view that the set off in respect of HSD was available under the Maharashtra Value Added Rules 2005 (the Rules). On 4/1/2011 an investigation was carried out by the Sales Tax Authorities at appellant's place of business. The authorities disputed the admissibility of set off on the purchases of HSD on the ground that under Rule 54(b) of the Rules, the set off was barred. Appellant, therefore, on 3/2/2011 filed an application under Sec. 56 of the Maharashtra Value Added Tax Act 2002 (the Act) for determination of disputed questions as to the admissibility of the set off on purchase of HSD. It is appellant's case that on 2/12/2010, the Tribunal in its order and judgment in Gupta Metallics & Power Ltd. Vs. The State of Maharashtra had held that under the Rules, appellant was entitled to set off on the purchases of HSD. Notwithstanding this ruling in favour of appellant, appellant for some reason applied under Sec. 56 of the Act for determination of disputed questions. However, in a judgment passed by this court on 17/8/2012 in Additonal Commissioner of Sales Tax Vs.Gupta Metallics & Power Ltd. (Sales Tax Appeal No.13 of 2011 in VAT Second Appeal No.55 of 2010), the court held that the provisions of Sec. 54(b) did not allow the set off to be granted on purchase of HSD. In the meanwhile, the law itself came to be amended on 16 th February 2012, by which Rules 52 and 54 of the Rules were amended to nullify the effect of Tribunal's judgment in Gupta Metallics (supra). In view of this judgment of the High Court which has attained finality, the Commissioner of Sales Tax before whom appellant's application under Sec. 56 of the Act was pending, closed the file. Appellant's prayer to the Commissioner to hold that the effect of amendment should have only prospective effect was not granted. Appellant wanted the Commissioner to hold that appellant's liability in respect of set off of HSD purchases it had claimed prior to the date of the High Court's judgment dtd. 17/8/2012 in Gupta Metallics (supra), be not effected.

(3.) Against this order of the Commissioner passed under Sec. 56 of the Act appellant preferred the appeal before the Tribunal, which rejected appellant's claim that prospective effect be granted on the bar of set off on the purchase of HSD. Mr. Patkar submitted that as the High Court settled the law only on 17/8/2012, appellant should be permitted to claim set off until that date. We cannot accept that submission.