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2020 (8) TMI 530 - HC - VAT and Sales TaxMaintainability of application - alternative statutory remedy of appeal - Gujarat VAT Act - whether we should entertain this writ application in exercise of our writ jurisdiction under Article 226 of the Constitution of India or relegate the writ applicant to avail the statutory remedy of preferring an appeal as provided under the provisions of the GVAT Act? HELD THAT:- If the order is made by a Deputy Commissioner as in the case on hand, the appeal shall lie to the Joint Commissioner. In the case of an order passed in appeal by a Joint Commissioner, a second appeal would lie to the Tribunal. Ultimately, an appeal lies to the High Court from every order passed in appeal by the Tribunal, if the High Court is satisfied that the case involves a substantial question of law. Thus, the GVAT Act, 2003 provides for a complete machinery to challenge an order of assessment and the impugned order of assessment can only be challenged as prescribed by the Act and not by a writ application under Article 226 of the Constitution of India. It is a settled position of law that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute must only be availed of. Reliance placed upon the decision of the Supreme Court in the case of TITAGHUR PAPER MILLS CO. LIMITED. AND ANOTHER VERSUS STATE OF ORISSA AND ANOTHER [1983 (4) TMI 49 - SUPREME COURT], wherein it is observed that where a right or liability is created by a statute, which gives a special remedy for enforcing it,, the remedy provided by that statute must only be availed of. As in the instance case, the GVAT Act, 2003 provides complete machinery for the assessment/reassessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the authorities, in our opinion, the writ applicant should not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution, more particularly, when the writ applicant has the adequate remedy open him by an appeal to the Joint Commissioner - it is not convincing that it is not a case wherein we should entertain this writ application under Article 226 of the Constitution of India despite there being an efficacious alternative remedy of filing an appeal. This writ application cannot be admitted and the writ applicant is relegated to avail the alternative remedy of filing an appeal under Section 73 of the GVAT Act, 2003 - application dismissed.
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