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Plea of alternative remedy not acceptable against writ petition if there is jurisdictional error |
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Plea of alternative remedy not acceptable against writ petition if there is jurisdictional error |
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It is well known that when an alternative remedy is available to a person then the writ petition in the High Court may not be acceptable. Punjab & Haryana High Court in the following case has held that plea of alternative remedy cannot be invoked where the question involved is of lack of jurisdiction on admitted facts.
It means that where an order of an authority suffers from error of lack of jurisdiction on admitted facts then in such case writ petition challenging such order can be filed and such writ should be accepted irrespective of the fact that the petitioner had the alternative remedy of filing an appeal against such order and he has not exhausted it before filing writ petition.
In this case penalty u/s 51 of Punjab VAT Act, 2005 was levied at the ICC barrier disputing the nature of transaction of sales by alleging that the said sales was an intra-state sales as goods were to be used in the works to be executed in Punjab, whereas the petitioner contended it to be an an inter-state sales.
This was a legal issue which has to be adjudicated by the assessing authorities and the said matter could not be decided at the ICC barrier while the goods were in transit, hence the matter was outside the jurisdiction of the authorities at ICC barrier.
The writ petition filed against such order was accepted by the High court irrespective of the fact that the petitioner had the remedy to file an appeal against such order and it was held as under:
“The plea of alternative remedy cannot be accepted as question involved in the present case is of lack of jurisdiction on admitted facts.
In the present case, the petitioner furnished all the information and raised a dispute of taxability relying upon the judgment in Kone Elevators (India) Ltd's 2005 -TMI - 105511 - SUPREME COURT OF INDIA In such a situation there could be no question of attempt at tax evasion. Invocation of jurisdiction to impose penalty at the Information Collection Centre was not called for.”
Full judgement is as follows:
Amit Bajaj Advocate
Bajaj & Bajaj Advocates
128, Sangam Complex,
Milap Chowk, Jalandhar(Punjab)
By: AMIT BAJAJ ADVOCATE - March 10, 2012
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