Home Case Index All Cases VAT and Sales Tax VAT and Sales Tax + HC VAT and Sales Tax - 2022 (11) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (11) TMI 217 - HC - VAT and Sales TaxMaintainability of petition - availability of efficacious alternative statutory remedy of filing of appeal - inter-state purchase of HSD at concessional tax rates against C-Forms - deletion of entry in registration certificate - Section 49 (4) of Chhattisgarh Value Added Tax, 2005 - whether proper notice was issued to petitioners for Sales Tax (Central) or not? - HELD THAT:- Normally writ petitions filed by-passing alternate statutory remedy available under the law are not to be entertained, but there is no absolute bar. The bar created by Courts is self-restrained. Recently, in case of Assistant Commissioner of Sales Tax & others vs. Commercial Steel Limited [2021 (9) TMI 480 - SUPREME COURT], Hon'ble Supreme Court while dealing with question of maintainability of writ petition has held that the High Court having regard to the facts of the case, can exercise discretion to entertain or not to entertain writ petition. An alternative remedy is not an absolute bar for invoking writ jurisdiction of the High Court under Article 226 of the Constitution of India and in cases where the authority against whom writ is filed is shown to have had no jurisdiction or had usurped jurisdiction without any legal foundation, writ petition can be entertained. In the case at hand, petitioners, who are registered dealers under the Act of 2005 as also the Act of 1956, have been awarded contract by South Eastern Coalfields Ltd. for execution of work of excavating overburden (all kinds of strata/ overburden in situ), loading into tippers, transportation and unloading of excavated materials; sprinkling & spreading of material at the site shown and other related works, awarded to them by South Eastern Coalfields Ltd. under contract. After award of contract, petitioners submitted application seeking inclusion of 'high-speed diesel (HSD) and 'mining' in their registration certificates under the Act of 2005 and in certificate under the Act of 1956. Accordingly, their registration certificates were amended - The petitioners have raised the ground that respondent Department had not issued proper notice under Section 49 (3) of the Act of 2005 for deleting entries 'mining' and 'high-speed diesel (HSD)' from their registration certificates and deleted entries 'mining' and 'high-speed diesel (HSD)' from the registration certificates of petitioners issued under the Act of 1956. In some case, after deletion of entries from registration certificate, consequential order of recovery of tax with penalty has been passed against petitioners concerned. It is apparent that respondent Department had suo motu decided revision No.146 K.C. - 1/20 (Central) without issuing notice and without giving opportunity of being heard to registered dealer i.e. petitioner herien, which is mandatory under the provisions of Section 49 (3) the Act of 2005 and Rule 9 of the Rules of 1957. This Court is of the view that the order impugned with respect to suo motu revision No.146 K.C.-1/20 (Central) is passed in violation of provisions of the Act of 2005 as also the Rules of 1957 as no notice under Section 49 (3) of the Act of 2005 was issued giving opportunity of hearing to registered dealer before amending registration certificate issued in Form-B under Rule 5 of the Rules of 1957 by deleting entries made thereunder. Hence, in the opinion of this Court there was violation of principles of natural justice. This being the position, the impugned order is liable to be and is hereby quashed - petition allowed.
|