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2017 (12) TMI 263 - HC - VAT and Sales TaxValidity of assessment order - time limitation - APVAT Act - case of petitioner is that out of the block period of 1.9.2005 to 31.3.2012, the period of 1.9.2005 to March 2009 falls beyond the limitation period of four years, that therefore respondent No.4 had no jurisdiction to pass such an order and that, as the power exercised by respondent No.4 is without jurisdiction - case of Revenue is that the writ petition was filed bypassing the effective alternative remedy of appeal before the A.P. VAT Tribunal and that therefore the same is liable to be dismissed in limine - Held that: - The rule of alternative remedy is not a rule of law, but a self imposed restriction by the Constitutional Courts. When a statute created efficacious remedies, a litigant cannot insist on entertaining the writ petition without availing such remedies. Though availability of an alternative remedy is not an absolute bar for entertaining the writ petition, ordinarily this Court would not allow a litigant to bypass an alternative remedy except in exceptional situations. It is not the pleaded case of the petitioner that its case falls in any of the exceptions recognized by the Supreme Court as discussed above or that the issue raised in this writ petition cannot be adjudicated by the A.P. VAT Tribunal presided by no less an officer of a Special Grade District Judge - the petitioner is not entitled to invoke the jurisdiction of this Court without availing the statutory remedy of appeal before the Tribunal. Time limitation - case of Revenue is also that as the petitioner has not raised the aspect of limitation in both the rounds of litigation before the Assessing Officer as well as the Deputy Commissioner, it is barred from raising such plea in the present writ petition - Held that: - the counsel for the petitioner is labouring under a misconception that this Court has duty and obligation to entertain writ petitions in order to set aside every wrong or illegal order. The law is well settled that the jurisdiction under Article 226 of the Constitution of India is discretionary and this Court would not be compelled to adjudicate upon the merits of a case merely because a case is made out that the order challenged before it is illegal. While exercising the jurisdiction under Article 226 of the Constitution, this Court would consider the conduct of the party and the facts and circumstances of the case, before adjudicating the case on merits. Limitation being a mixed question of law and fact, has to be necessarily raised by a party in order that the adjudicating authority applies its mind and renders a finding thereon. The petitioner has not offered any semblance of explanation as to why and for what reason it has failed to raise the issue of limitation - the conduct of the petitioner shows that there is lack of diligence in raising necessary plea which ought to be raised by it and a decision invited thereon. The absence of explanation on the part of the petitioner for not raising the objection in spite of repeated opportunities to raise such objection, both before the original and the appellate authority, would give rise to a presumption that it has deliberately not raised the issue in order to avoid a finding from the jurisdictional hierarchical authorities. Petition dismissed - decided against petitioner.
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