# M/s Simla Gomti Pan Products Pvt. Ltd v. Commissioner of State

- **Citation:** (2025) 11 ILRA 697
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-03
- **Case number:** Writ Tax No. 533 of 2025
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-simla-gomti-pan-products-pvt-ltd-v-commissioner-of-state-52890
- **Pages:** 16

## Headnote

C.S.C.

Issue for consideration
Matter pertains to constructive res-judicata.

Headnotes
U.P. Goods and Sales Tax Act, 2017-
Section 74-, 107-Henderson Principlealleged-impugned orders passed without
affording an opportunity of hearing- appeal
filed-dismissed on the ground of limitation-
as
well
as
non-compliance
of
Section
107(1)(b) the GST Act.- appeal filed did not
accompany
the
pre-deposit-thereafter
petitioner filed a Writ-Tax- never made any
prayer that the petitioner may be exempted
from making the pre-deposit- cannot be
permitted to raise the said issue later by a
subsequent petition- deliberate attempt has
been made by filing a successive writ
petition- only to evade the pre-deposit of
10% - constructive res-judicata is clearly
attracted. W.P. dismissed. (E-9)

Case Law Cited

## Text

_Characters 0–39,969 of 54,036. This is a partial read: ask again with offset=39969 for what follows._

11 All. M/s Simla Gomti Pan Products Pvt. Ltd. Vs. Commissioner of State Tax U.P., Commissioner
 Office Lko & Ors.
697
Trial Court has fully discussed and
analysed both prosecution and defence
witnesses in minute details. Trial Court
has discussed both oral and documentary
evidence as adduced by prosecution and
defence. By mentioning and discussing
the prosecution and defence witnesses
including oral and documentary evidence,
Trial Court also found that prosecution
witnesses i.e. Hemant Kumar (PW-2),
Devendra Kumar (PW-3) and Pushpendra
Kumar Gupta (PW-5) were not eyewitnesses of the alleged incident. Trial
Court in a fully stretched, lengthy and
well discussed judgment found that
Hemant Kumar (PW-2), Devendra Kumar
(PW-3) and Pushpendra Kumar Gupta
(PW-5) were not eye-witnesses of the
alleged
incident
as
stated
by
the
prosecution. We find that judgment and
order of acquittal dated 08.10.1987
passed by the learned Trial Court is just
and proper. No interference is warranted
by this Court.

28. In the light of the above
discussions, we do not find any force in the
arguments advanced by learned A.G.A. for
the State, as such, the present government
appeal filed by the State is liable to be
dismissed.

29.
Accordingly,
the
appeal
is
dismissed.

30. The judgment of this Court shall
be sent to the Trial Court for necessary
compliance. The Trial Court records be
transmitted back to the Trial Court.
----------
(2025) 11 ILRA 697
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.11.2025

BEFORE
THE HON'BLE JASPREET SINGH, J.

Writ Tax No. 533 of 2025

M/s Simla Gomti Pan Products Pvt. Ltd.
 ...Appellants
Versus
Commissioner
of
State
Tax
U.P.,
Commissioners Office Lko & Ors.
 ...Respondents

Counsel for the Appellants:
Pradeep Agrawal, Amar Mani Tiwari

Counsel for the Respondents:
C.S.C.

Issue for consideration
Matter pertains to constructive res-judicata.

Headnotes
U.P. Goods and Sales Tax Act, 2017-
Section 74-, 107-Henderson Principlealleged-impugned orders passed without
affording an opportunity of hearing- appeal
filed-dismissed on the ground of limitation-
as
well
as
non-compliance
of
Section
107(1)(b) the GST Act.- appeal filed did not
accompany
the
pre-deposit-thereafter
petitioner filed a Writ-Tax- never made any
prayer that the petitioner may be exempted
from making the pre-deposit- cannot be
permitted to raise the said issue later by a
subsequent petition- deliberate attempt has
been made by filing a successive writ
petition- only to evade the pre-deposit of
10% - constructive res-judicata is clearly
attracted. W.P. dismissed. (E-9)

Case Law Cited
1. M.P. Steel Corporation v. Commissioner of
Central Excise, (2015) 7 SCC 58
2. Suryachakra Power Corporation Limited v.
Electricity Department Represented by Its
Superintending Engineer, Port Blair and others,
(2016) 16 SCC 152
3. Sarguja Transport Service v. State Transport
Appellate Tribunal, M.P., Gwalior and others,
(1987) 1 SCC 5
4. Celir LLP v. Sumati Prasad Bafna and others,
2024 SCC OnLine SC 3727
698 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Acts
U.P. Goods and Sales Tax Act, 2017

List of Keywords
Opportunity of hearing, ground of limitation,
non-compliance of Section 107(1)(b) the GST
Act, constructive res-judicata.

Appearances of parties
Counsel for Petitioner(s) : Pradeep Agrawal,
Amar Mani Tiwari Counsel for Respondent(s) :
C.S.C.

(Delivered by Hon'ble Jaspreet Singh, J.)

1. Heard Shri Pradeep Agrawal,
learned counsel for the petitioner and Shri
Sanjay Sarin, learned Additional Chief
Standing Counsel for the State-Revenue.

2. Under challenge is the order dated
24.05.2025 passed by the respondent No.2
for the Assessment Years 2021-22 and
2022-2023 respectively. The petitioner also
prays that the order dated 12.06.2024
passed under Section 74 of the U.P. Goods
and Sales Tax Act, 2017 (in short, 'the GST
Act') has been passed without affording an
opportunity of hearing, hence, the same
also deserves to be set aside and a further
direction has been sought directing the
respondent No.3 not to recover the disputed
tax for the Assessment Years 2021-22 and
2022-23 respectively.

3. Shri Agrawal, learned counsel for
the petitioner has submitted that the
impugned orders were passed ex-parte,
without notice to the petitioner. The
petitioner assailed the said orders by filing
an appeal which was dismissed on the
ground of limitation.

4. Being aggrieved, the petitioner
preferred a writ petition bearing Writ-Tax
No.330 of 2024 and the said writ petition
was allowed vide order dated 10.04.2025
by a Coordinate Bench of this Court and
the Appellate Authority was directed to
decide the application for condonation of
delay considering the decisions of the Apex
Court.

5. The submission is that the order
passed by the Appellate Authority is clearly
vague and without jurisdiction inasmuch as
the High Court in Writ Tax No.330 of 2024
had directed the Appellate Authority to
consider and decide the appeal afresh
considering the decisions of the Apex
Court in M.P. Steel Corporation v.
Commissioner of Central Excise, (2015)
7 SCC 58 and Suryachakra Power
Corporation
Limited
v.
Electricity
Department
Represented
by
Its
Superintending Engineer, Port Blair and
others, (2016) 16 SCC 152, but the
Appellate Authority dismissed the appeal
on the ground of limitation as well as noncompliance of Section 107(1)(b) the GST
Act.
Accordingly,
the order
of
the
Appellant Authority runs contrary to the
mandate of this Court, hence, the same
deserves to be set aside.

6. It is further urged that the petitioner
had already prayed before the Appellate
Authority that the petitioner was not in a
position to make the pre-deposit and this
issue was also considered in the writ
petition filed by the petitioner and in such
circumstances, the issue of pre-deposit
could not have been made a ground to
dismiss the appeal rather the same should
have been considered on its merit ignoring
the delay as provided in the decisions of the
Apex Court in M.P. Steel Corporation
(supra)
and
Suryachakra
Power
Corporation Limited (supra).

7. On the other hand, Shri Sarin,
learned Additional Chief Standing Counsel
11 All. M/s Simla Gomti Pan Products Pvt. Ltd. Vs. Commissioner of State Tax U.P., Commissioner
 Office Lko & Ors.
699
for the State has refuted the aforesaid
submissions and has pointed out that the
orders impugned do not suffer from any
error. It is urged by Shri Sarin that the
chronology as indicated in the petition is
not what transpired inasmuch as on the first
occasion, the petitioner had filed a writ
petition before the Division Bench of this
Court bearing Writ-Tax No.220/2024,
which came to be dismissed by means of
the order dated 04.09.2024 relegating the
petitioner to avail the remedy of appeal.
Thereafter, the petitioner assailed the said
order passed by the Division Bench of this
Court dated 04.09.2024 in a Special Leave
Petition before the Hon'ble Apex Court
bearing SLP No.25574 of 2024 and the said
SLP was dismissed on 04.11.2024.

8. The petitioner thereafter preferred
the regular appeal after dismissal of his
SLP and the same came to be dismissed by
the Appellate Authority on the ground of
limitation. This order, whereby the appeal
of the petitioner was dismissed on the
ground of limitation was again challenged
by the petitioner before a Coordinate
Bench. A Coordinate Bench of this Court
in Writ-Tax No.330 of 2024 allowed the
petition directing the Appellate Authority
to consider the appeal of the petitioner
taking note of the dictum of the Apex Court
in M.P. Steel Corporation (supra) and
Suryachakra
Power
Corporation
Limited (supra).

9. The Appellate Authority considering
the order passed by a Coordinate Bench of
this Court dated 10.04.2025 considered the
appeal and found that it was non-complaint of
Section 107(6)(b) of the GST Act and
dismissed the appeal. It is urged that merely
pleadings in the petition that the petitioner
does not have the capacity to pay 10% of predeposit as envisaged in the GST Act does not
automatically operate as a way forward for
the petitioner to get his appeal heard on merit.

10. It is submitted that at no point of
time either when the petitioner had preferred
Writ-Tax No.220 of 2024 before the Division
Bench of this Court or when the petitioner
filed Writ Tax No.330 of 2024, the petitioner
did not seek a relief of exemption from
making the pre-deposit. The record would
indicate that once the Division Bench of this
Court had declined to interfere by means of
the order dated 04.09.2024 and directed the
petitioner to avail the remedy of appeal, it
was incumbent upon the petitioner to have
made the pre-deposit with the appeal,
however, the petitioner choose to assail the
order of the Division Bench before the Apex
Court which needless to say was dismissed.

11. In this view, the petitioner while
preferring the writ petition ought to have
claimed (if permissible in law) exemption
from pre-depositing 10%, however, it was not
made. Accordingly, the appeal filed by the
petitioner did not accompany the pre-deposit
and not being in accordance with the
provisions, hence, it was dismissed as being
time barred. Once again, the petitioner filed a
Writ-Tax No.330 of 2024 knowing fully well
that the appeal had been dismissed on the
ground of limitation, the petitioner only
claimed the remedy that his appeal may be
heard taking note of the decisions of the
Apex Court in M.P. Steel Corporation
(supra)
and
Suryachakra
Power
Corporation Limited (supra), but never
made any prayer that the petitioner may be
exempted from making the pre-deposit. The
said petition was allowed and the matter was
remitted to the Appellate Authority.

12. This time by the impugned orders,
the appeal has been dismissed primarily not
on the ground of limitation rather the
700 INDIAN LAW REPORTS ALLAHABAD SERIES
appeal was dismissed on the ground that it
was non-complaint of Section 107(6)(b) of
the GST Act. Hence, the instant petition
has no merit and deserves to be dismissed.

13. The Court has considered the rival
submissions and also perused the material
on record.

14. The facts are not disputed between
the parties and in order to resolve the
controversy raised by the learned counsel
for the parties, certain timelines are
important to be noticed, hereinafter:-

(i)
For
the
first
time,
the
petitioner assailed the order impugned
dated
12.06.2024
relating
to
the
Assessment Years 2021-22 and 2022-23
respectively directly by filing a Writ Tax
No.220 of 2024 before the Division Bench
of this Court, who by means of its order
dated 04.09.2024 dismissed the petition on
the ground of statutory remedy being
available and it reads as under:-

"Heard learned counsel for the
petitioner, learned Standing Counsel who
appears
on
behalf
of
the
State
?
Respondents.

This petition has been filed with
the following main prayers :-

"(i) issue a writ, order or direction
in the nature of writ of certiorari quashing
the impugned orders for the A.Y. 2021-22
& 2022-23 (01.4.2022 to 30.07.2022) dated
12.06.2024 contained in Annexure No.1 &
2 to the writ petition after summoning the
records.

(ii) issue a writ, order or direction
in the nature of writ of mandamus directing
the opposite party no.2 to supply a copy of
the SIB report and the mode of calculation
including the supporting documents so that
show cause notice is effectively replied.

(iii) Issue a writ, order or
direction in the nature of writ of mandamus
directing the opposite party no.2 to provide
sufficient time for preparation of the reply
to the show cause notice and also provide
personal hearing before completion of
adjudication proceedings."

It is the case of the petitioner that
adjudication
proceedings
for
the
assessment year 2021-2022, 2022-2023
were taken ex-parte against the petitioner
as the petitioner was not given any report
of the SIB which the petitioner has specific
plea
requested
by
his
letter
dated
30.4.2024.

Since relevant documents for
replying to the show cause notice were not
supplied
to
the
petitioner
he
was
handicapped and prejudiced. It has been
stated in the impugned order that the
petitioner was informed by letter dated
11.5.2024 on the portal to collect the copies
of the SIB report from the office of
opposite party no.2 and to submit his reply
by 10.6.2024, however, such letter dated
11.5.2024 was posted at wrong section of
portal and as such it could not be seen by
the petitioner.

The petitioner having been denied
opportunity of hearing the order impugned
are vitiated and therefore liable to be set
aside.

The counsel appearing on behalf
of the State- respondent has pointed out
that the petitioner has not said that the
adjournment letter dated 11.5.2024 by
which he was informed that he may
11 All. M/s Simla Gomti Pan Products Pvt. Ltd. Vs. Commissioner of State Tax U.P., Commissioner
 Office Lko & Ors.
701
approach the office of opposite party no.2
till 31.5.2024 and obtain a copy of the SIB
report and other relevant documents and
then submit his reply within 10.6.2024 was
posted on wrong portal. It is the case of the
petitioner that it was posted on his portal
but on the wrong side, i.e. in the category
of additional notices and orders instead of
notices and orders on the wrong portal.

Learned counsel appearing for the
State respondents has pointed out that the
petitioner has statutory remedy under
Section 107 of the State GST Act.

This petition is disposed of with
the liberty to the petitioner to file his appeal
within 10 days from today. If such an
appeal is filed the same shall be considered
on its merits and decided as expeditiously
as possible. The petitioner is also at liberty
to approach the office of opposite party
no.2 to procure a copy of the SIB report
and other relevant documents relied upon
in passing of the impugned order."

(ii) It is not disputed that the
petitioner assailed the order passed by the
Division Bench as noticed above by filing
SLP before the Hon'ble Apex Court, which
came to be dismissed by means of the order
dated 04.11.2024.

(iii) The impact of dismissal of
the SLP would be that the order of Division
Bench was upheld and it is in furtherance
thereof the petitioner, who was relegated to
the Appellate Authority filed his appeal
before
the
Appellate
Authority
on
06.11.2024. A copy of the memo of appeal
has been brought on record as Annexure
No.12 and it is also not in dispute that the
appeal was accompanied by an application
seeking condonation of delay.

(iv) It is also not disputed that for
filing an appeal, the petitioner had to make
a pre-deposit in terms of Section 107(6)(b)
of the GST Act. It is not disputed and also
evident from the record that the petitioner
pleaded
in
his
application
seeking
condonation
of
delay
that
the
appellant/petitioner had approached the
Apex Court against the order passed by the
Division Bench of this Court. It was also
stated that due to lack of funds relating to
pre-deposit, the petitioner had approached
the Apex Court with a request to provide an
opportunity of hearing, but the same was
rejected
on
04.11.2024,
hence,
the
appellant/petitioner is submitting his appeal
without pre-deposit of 10% of the huge
disputed tax, hence, the delay be condoned
and the appeal be heard on merits.

(v) It is also not disputed that
despite making this contention, the appeal
of the petitioner was dismissed on the
ground of delay which further prompted the
petitioner to file and assail the order
relating to dismissal by filing Writ-Tax
No.330 of 2024.

15. Now, in the second round, a
Coordinate Bench of this Court vide order
dated 10.04.2025 allowed the Writ Petition
No.330 of 2024 and directed the appellate
Authority to consider the appeal as well as
application for condonation of delay in
light of the dictum of the Apex Court in
M.P. Steel Corporation (supra) and
Suryachakra
Power
Corporation
Limited (supra).

16. At this very stage, it will be
relevant to notice Paragraph 3 to 15 of the
order passed by the Coordinate Bench of
this Court dated 10.04.2025 in Writ Tax
No.330 of 2024, which reads as under:-
702 INDIAN LAW REPORTS ALLAHABAD SERIES

"3. Contention of learned counsel
for the petitioner is that an ex-parte order
came to be passed by respondent no.3 in
purported exercise of power under Section
74 of the GST Act vide order dated
12.06.2024. He draws my attention to argue
that even no opportunity of hearing was
granted and the documents which were
sought in the form of SIB report, which
were proposed to be relied upon, was never
provided to the petitioner.

4. It is argued that against the said
order, the petitioner had approached this
Court by filing a writ petition being Writ
Tax No.220 of 2024, however, the same
was disposed off vide judgment dated
04.09.2024. In the said judgment, it was
observed that in case the petitioner files his
reply within a period of ten days from
today, the same shall be considered on
merits
and
shall
be
decided
as
expeditiously
as
possible.
Further
directions for providing the SIB report was
also passed.

5. Aggrieved against the said
order passed by this Court, the petitioner
approached the Hon'ble Supreme Court by
filing SLP No.25574 of 2024 which came
to be dismissed on 04.11.2024. The SLP
was dismissed without going on the merits
of the order passed. After the dismissal of
the SLP on 04.11.2024, the petitioner
preferred the regular appeal under Section
107 of GST Act on 06.11.2024, however,
the same came to be dismissed by means of
the impugned judgment.

6. In the said order, it was also
observed that the petitioner has not
deposited the mandatory requirement of
10% of pre-deposit and it was also noticed
that the appeal was beyond limitation and
the delay could not be condoned. The
Tribunal also noticed the order of this
Court in the case of M/s A V Construction
vs. Commissioner and Ors.; Writ Tax
No.819 of 2021 decided on 30.09.2021
wherein it was held that the principles of
Section 5 of Limitation Act would have no
application in the face of law which is a
complete code and apart from the quantum
of delay which can be condoned as
prescribed under Section 107 of GST Act,
the Tribunal did not have the power to
invoke the principles of Section 5 of the
Limitation Act to condone the delay.

7. In the light of the said, learned
counsel for the petitioner argues that the
petitioner was bonafidely pursuing his
remedies against the assessment order,
firstly by filing a writ petition before this
Court and secondly by availing the remedy
of SLP before the Hon'ble Supreme Court,
and thus, the petitioner was entitled to the
benefit of Section 14 of the Limitation Act
as has been held in the case of M.P. Steel
Corporation vs. Commissioner of Central
Excise; (2015) 7 SCC 58. He further argues
that the order under Section 74 of the GST
Act is wholly arbitrary for the reasons that
in the show-cause notice, there was no
assertion/allegation that there exist any
material so as to justify invoking of larger
period of limitation under Section 74. He
argues that to invoke the jurisdiction under
Section 74, in contradiction to the powers
conferred by Section 73, it is essential that
power under Section 74 can only be
invoked when tax is not paid or short paid
by reasons of fraud or any wilful
misstatement or suppression of facts. He
argues that there were no allegation, leave
alone finding, in the impugned order to
justify invocation of power under Section
74 of the GST Act. He further argues that
even the documents proposed to be relied
upon being the SIB report, was never
11 All. M/s Simla Gomti Pan Products Pvt. Ltd. Vs. Commissioner of State Tax U.P., Commissioner
 Office Lko & Ors.
703
provided and thus, for all the reasons, the
impugned orders deserve to be quashed.

8. Learned Standing Counsel,
based
upon
instructions
and
counter
affidavit, argues that the SIB report was
directed to be collected by the assessee,
however, he did not do so. It is further
argued that the petitioner has already
approached this Court by filing a writ
petition which has been disposed off, thus,
the validity of the order of assessment
cannot be seen again in a subsequent writ
petition. He further argues that the
petitioner was granted ten days' time by this
Court to file and avail the remedy of appeal
which he chose not to do so and thus, it is
the petitioner who is to be blamed for him
not being vigilant in pursuing the remedies
prescribed under law, as such, the writ
petition should be dismissed.

9. As regards the argument with
regard to the applicability of Section 14 of
the Limitation Act, it is argued that the
order is silent on that aspect.

10. Considering the submissions
made at the Bar, prima-facie, the petitioner
was bonafidely pursuing his remedy before
this Court as well as before the Supreme
Court as is evident from the two orders
passed, and immediately after passing of
the order by the Supreme Court on
04.11.2024, the petitioner preferred the
appeals on 06.11.2024. The period of the
petitioner having spent before the High
Court and the Supreme Court could be
pleaded by him to be excused in view of
the mandate of Section 14 of the Limitation
Act. This aspect has not been considered in
the impugned orders.

11. Thus, finding the impugned
orders dated 11.11.2024 & 23.11.2024 to
be improper insofar as it fails to consider
the mandatory prescriptions contained in
Section 14 of the Limitation Act, the orders
impugned cannot be sustained and are
quashed.

12. Matter is remanded to the
appellate authority to pass orders afresh
after considering the mandate of M.P. Steel
Corporation
(supra)
and
Suryachakra
Power Corporation Limited vs. Electricity
Department
Represented
by
Its
Superintending Engineer, Port Blair and
Ors.; (2016) 16 SCC 152.

13. The said order shall be passed
by the appellate authority within a period of
three weeks.

14. The petitioner would be at
liberty
to
place
any
other
relevant
documents/case-laws that he may think
appropriate before the appellate authority.

15.
Present
petition
stands
allowed in above terms."

17. After this order was placed before
the appellate Authority, the appellate
Authority vide impugned order, after
noticing the facts and the contentions of the
appellant/petitioner
found
that
the
directions of the writ Court vide order
dated 10.04.2025 was in respect of the
limitation and not in respect of exemption
of pre-deposit of 10%, hence, in absence of
pre-deposit,
the
appellate
Authority
dismissed the appeal being not in order.

18. This Court finds that as far as the
issue of pre-deposit is concerned, though
the petitioner had taken it as a ground of
invoking the writ jurisdiction of this Court
by filing writ petition bearing Writ Tax
No.220 of 2024 which was dismissed by
704 INDIAN LAW REPORTS ALLAHABAD SERIES
relegating the petitioner to approach the
Appellate authority. However, at no point
of time, it was ever pressed or a specific
relief was sought by the petitioner to
exempt the petitioner from making the predeposit.

19. It is relevant to notice that while
the petitioner had assailed the order of the
Division Bench before the Apex Court
which was also dismissed. Thereafter, the
petitioner filed an appeal and in his appeal,
an application for seeking condonation of
delay was moved which is at running Page
No.254 of the paper-book. What is
important is Paragraph 2 to 4 of the said
application, which reads as under:-

"2. That the disputed tax is of so
huge amount that the appellant is unable to
deposit 10% of the disputed tax and also
the appellant did not get proper opportunity
of hearing of the show cause notice. Hence
the appellant approached Honorable High
for affording an opportunity for hearing
against the notices BUT the Honorable
Court rejected the prayer through Order
dated 21.9.2024 by directing the appellant
to submit this appeal BUT due to lack of
funds to deposit 10% of the disputed tax
the
appellant
approached
Honorable
Supreme court with request to provide an
opportunity for hearing of the case by order
for remand the case to the respondent
because the appellant is unable to deposit
10% of the huge disputed tax BUT
Honorable Court rejected the prayer on
date 4.11.2024.

3. That the appellant is submitting
this appeal without depositing 10% of the
heavy and huge disputed tax because the
bank account has also been seized and the
business activities has been shut down due
to which the appellant is unable to deposit
any portion of the disputed tax and to
deposit 10% is totally impossible.

4. That if the delay is not
condoned and requirement to deposit 10%
of the disputed tax is not waived off then
the appellant has to completely shut down
the business."

20. In the statement of fact preferred
by the petitioner in the memo of appeal,
which
is
at
running
Page
No.258,
Paragraph-3 thereof is relevant, which
reads as under:-

"3. That the main accountant who
looks after the accounts and GST Portal
was seriously ill for some time. Hence the
appellant
hired
another
part
time
accountant to look after the returns and
accounts. The new accountant did not
enquire regularly the GST Portal on which
the respondent served the disputed order.
The counsel of the appellant while filing an
appeal against Order U/S 129 finds out that
the disputed order has been served after
which
the
appellant
approached
to
Honorable High Court for affording an
opportunity for hearing against the notices
Issued U/S 74 BUT Honorable High Court
rejected the prayer through order dated
21.9.2024 and directed to file appeal
against the disputed order BUT the
appellant is unable to deposit 10% of the
heavy, huge, imaginary and illegal disputed
tax hence the appellant approached to
Honorable Supreme Court with request to
provide an opportunity for hearing of the
case by order for remand the case to the
respondent because the appellant is unable
to deposit 10% of the disputed tax as bank
account is also seized by the respondent
against the recovery BUT Honorable
Supreme Court rejected the prayer on date
4.11.2024 hence the appellant is filing this
11 All. M/s Simla Gomti Pan Products Pvt. Ltd. Vs. Commissioner of State Tax U.P., Commissioner
 Office Lko & Ors.
705
appeal without depositing the required 10%
of the disputed tax."

21. It is clear from the aforesaid
averments made by the petitioner that it
was specifically aware that it was required
to make a pre-deposit with the appeal.
Though the petitioner had taken grounds
that the petitioner did not have means to
make the pre-deposit, hence, it chose to file
the writ petition in the first place which
was dismissed and its attempt to assail the
order before the Apex Court also failed.

22. Apparently, the choice of the
petitioner to avail the remedy of writ
petition was squarely on the premise that
the demand was exorbitant and the
petitioner did not have means to pay and
that he was not granted an opportunity to
contest it on merits.

23. This is a clear case with indication
that the petitioner had filed the writ petition
in order to avoid making the pre-deposit,
hence, the petitioner was availing the
remedy of writ. Once the writ petition was
dismissed naturally, the same issue would
have been raised by the petitioner in SLP
which was also dismissed. This gets
credence from the fact that after the
dismissal of the SLP, the petitioner had
filed the appeal and in his application
seeking condonation of delay as well as
statement of fact, the relevant paragraphs of
which have been quoted hereinabove,
would reveal that though the special leave
petition was dismissed, yet the petitioner
wanted to seek exemption from making the
pre-deposit. No specific application was
moved and even otherwise, once the appeal
was dismissed on the ground of limitation
and the petitioner filed the writ petition
before a Coordinate Bench of this Court
bearing Writ Tax No.330 of 2024, then in
the said petition, the petitioner ought to
have claimed all reliefs which was to be
claimed and could not claim it in piecemeal
and in this regard, it would be clear that the
petitioner did not claim any remedy or
relief relating to exemption of pre-deposit,
while filing the aforesaid Writ Tax No.330
of 2024.

24. Learned counsel for the petitioner
could not dispute the fact that the relief of
exemption of pre-deposit was not claimed
in Writ Petition No.330 of 2024.

25. Even from a perusal of the order
dated 10.04.2024, which has been quoted
hereinabove in the earlier part of this
judgment,
it
would
reveal
that
the
Coordinate Bench of this Court in Para-6
while considering the chronology of event
noticed that the appeal had been dismissed
for want of pre-deposit, yet the direction
given while allowing the writ petition was
only in respect of limitation and not on the
issue of pre-deposit.

26. This Court finds that the issue of
pre-deposit was available to the petitioner
and that was the basic reason why initially
the petitioner filed the writ petition instead
of an appeal. The writ Court relegated the
petitioner to avail the remedy of an appeal,
however, no attempt was made by the
petitioner to seek any further relief
regarding exemption of pre-deposit. More
so, even before the Apex Court, the
petitioner, who did not succeed and was
aware that it had no further option but to
file the appeal, yet failed to seek any relief
from the Apex Court regarding exemption
of pre-deposit.

27. From the above, it would be clear
that this issue was always known to the
petitioner and having failed to take it as a
706 INDIAN LAW REPORTS ALLAHABAD SERIES
cause first before the Division Bench of
this Court, secondly, at the time when the
SLP was dismissed and even not having
prayed for it before the Appellate Authority
by moving a separate application and even
when the petitioner filed Writ Tax No.330
of 2024.

28. In the aforesaid circumstances, this
Court is of the clear view that the petitioner
cannot be permitted to file successive writ
petitions in respect of a remedy or relief
which was always known and available to
the petitioner but not having claimed and
even otherwise if it was taken then the
petitioner ought to have raised all his claim
at one place failing which the principles of
Order II Rule 2 CPC are attracted to the
detriment of the petitioner. [See : Sarguja
Transport Service v. State Transport
Appellate Tribunal, M.P., Gwalior and
others, (1987) 1 SCC 5] and the petitioner
cannot be permitted to raise the said issue
later by a subsequent petition filed under
Article 226/227 of the Constitution of
India.

29. There is another way to look at the
issue inasmuch as the petitioner having
informed the appellate authority of the fact
that it was unable to make the pre-deposit
and the appeal was dismissed on the ground
of limitation then while preferring the Writ
Tax No.330 of 2024, the petitioner should
have raised the said issue and even while a
direction was issued only in respect of the
limitation, but there is no direction relating
to exemption of pre-deposit.

30. At this stage, it will be apt to
notice the 'Henderson principle' which is
the core of the doctrine of abuse of process
and to ensure that litigant does not indulge
in repetitive and vexatious legal challenges.
The Apex Court has explained the same in
Celir LLP v. Sumati Prasad Bafna and
others, 2024 SCC OnLine SC 3727 as
under:-

"135. The ?Henderson Principle?
is a foundational doctrine in common law
that addresses the issue of multiplicity in
litigation. It embodies the broader concept
of procedural fairness, abuse of process and
judicial efficiency by mandating that all
claims and issues that could and ought to
have been raised in a previous litigation
should not be relitigated in subsequent
proceedings. The extended form of resjudicata
more
popularly
known
as
?Constructive Res Judicata? contained in
Section 11, Explanation VII of the CPC
originates from this principle.

136. In Henderson v. Henderson,
[1843] 3 Hare 999, the English Court of
Chancery speaking through Sir James
Wigram, V.C. held that where a given
matter becomes the subject of litigation and
the adjudication of a court of competent
jurisdiction, the parties so litigating are
required to bring forward their whole case.
Once the litigation has been adjudicated by
a court of competent jurisdiction, the
same parties will not be permitted to
reopen the lis in respect of issues which
might have been brought forward as part
of the subject in contest but were not,
irrespective of whether the same was due
to any form of negligence, inadvertence,
accident or omission. It was further held,
that principle of res judicata applies not
only to points upon which the Court was
called upon by the parties to adjudicate
and pronounce a judgment but to every
possible or probable point or issue that
properly belonged to the subject of
litigation and the parties ought to have
brought forward at the time. The relevant
observations read as under:"
11 All. M/s Simla Gomti Pan Products Pvt. Ltd. Vs. Commissioner of State Tax U.P., Commissioner
 Office Lko & Ors.
707

"In trying this question I believe I
state the rule of the Court correctly when I
say that, where a given matter becomes the
subject of litigation in, and of adjudication
by, a Court of competent jurisdiction, the
Court requires the parties to that litigation
to bring forward their whole case, and will
not (except under special circumstances)
permit the same parties to open the same
subject of litigation in respect of matter
which might have been brought forward as
part of the subject in contest, but which was
not brought forward, only because they
have, from negligence, inadvertence, or
even accident, omitted part of their case.
The plea of res judicata applies, except in
special cases, not only to points upon
which the Court was actually required by
the parties to form an opinion and
pronounce a judgment, but to every point
which properly belonged to the subject of
litigation, and which the parties, exercising
reasonable diligence, might have brought
forward at the time. [...]"

 (Emphasis supplied)

137. The above proposition of
law came to be known as the 'Henderson
Principle'
and
underwent
significant
evolution, adapting to changing judicial
landscapes and procedural requirements.
The House of Lords in Johnson v. Gore
Wood & Co, [2002] 2 A.C. 1, upon
examining
the
?Henderson
Principle?
authoritatively
approved
it
with
the
following observations:"

(i) Lord Bingham of Cornhill
integrated the principle with the broader
doctrine of abuse of process and held that
the bringing of a claim or the raising of a
defence in later proceedings which ought to
have been raised earlier will not always be
hit by this principle, but rather will apply
where such point is sought to be raised as
an additional or collateral attack on a
previous decision and the bringing forth of
such ground amounts to misusing or
abusing the process of the court or as a
means for unjust harassment of a party. The
relevant observations read as under:'

"Henderson v. Henderson abuse
of process, as now understood, although
separate and distinct from cause of action
estoppel and issue estoppel, has much in
common with them. The underlying public
interest is the same : that there should be
finality in litigation and that a party should
not be twice vexed in the same matter. This
public interest is reinforced by the current
emphasis on efficiency and economy in the
conduct of litigation, in the interests of the
parties and the public as a whole. The
bringing of a claim or the raising of a
defence in later proceedings may, without
more, amount to abuse if the court is
satisfied (the onus being on the party
alleging abuse) that the claim or defence
should have been raised in the earlier
proceedings if it was to be raised at all. I
would not accept that it is necessary, before
abuse may be found, to identify any
additional element such as a collateral
attack on a previous decision or some
dishonesty, but where those elements are
present the later proceedings will be much
more obviously abusive, and there will
rarely be a finding of abuse unless the later
proceeding involves what the court regards
as unjust harassment of a party. It is,
however, wrong to hold that because a
matter could have been raised in earlier
proceedings it should have been, so as to
render the raising of it in later proceedings
necessarily abusive. That is to adopt too
dogmatic an approach to what should in my
opinion be a broad, merits-based judgment
which takes account of the public and
private interests involved and also takes
708 INDIAN LAW REPORTS ALLAHABAD SERIES
account of all the facts of the case, focusing
attention on the crucial question whether, in
all the circumstances, a party is misusing or
abusing the process of the court by seeking
to raise before it the issue which could have
been
raised
before.
As
one
cannot
comprehensively list all possible forms of
abuse, so one cannot formulate any hard
and fast rule to determine whether, on
given facts, abuse is to be found or not
[...]"

(Emphasis supplied)

(ii) Lord Millett construing the
Principle held that it does not belong to the
doctrine of res-judicata in the strict sense
but rather was analogous to the doctrine, as
it goes a step further to encompass even
those proceedings that either culminated
into a settlement or issues which had never
been adjudicated previously in order to
protect the process of the court from abuse
and the defendant from oppression. The
relevant observations read as under:'

"As the passages which I have
emphasised indicate, Sir James Wigram VC did not consider that he was laying down
a new principle, but rather that he was
explaining the true extent of the existing
plea of res judicata. Thus he was careful to
limit what he was saying to cases which
had proceeded to judgment, and not, as in
the present case, to an out of court
settlement. Later decisions have doubted
the correctness of treating the principle as
an application of the doctrine of res
judicata, while describing it as an extension
of the doctrine or analogous to it ... But
these various defences [res judicata, issue
or cause of action estoppel] are all designed
to serve the same purpose : to bring finality
to litigation and avoid the oppression of
subjecting a defendant unnecessarily to
successive
actions.
While
the
exact
relationship
between
the
principle
expounded by Sir James Wigram V-C and
the defences of res judicata and cause of
action and issue estoppel may be obscure, I
am inclined to regard it as primarily an
ancillary and salutary principle necessary to
protect the integrity of those defences and
prevent them from being deliberately or
inadvertently circumvented.

In one respect, however, the
principle goes further than the strict
doctrine of res judicata or the formulation
adopted by Sir James Wigram V-C, for I
agree that it is capable of applying even
where the first action concluded in a
settlement. Here it is necessary to protect
the integrity of the settlement and to
prevent the defendant from being misled
into believing that he was achieving a
complete settlement of the matter in dispute
when
an
unsuspected
part
remained
outstanding.

However
this
may
be,
the
difference to which I have drawn attention
is of critical importance. It is one thing to
refuse to allow a party to relitigate a question
which has already been decided; it is quite
another to deny him the opportunity of
litigating for the first time a question which
has not previously been adjudicated upon.
This latter (though not the former) is prima
facie a denial of the citizen's right of access to
the court conferred by the common law and
guaranteed by article 6 ..