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2022 (12) TMI 1328 - HC - VAT and Sales TaxJurisdiction - time limitation - whether the contention of petitioner that as second respondent has already exercised the suo motu powers of revision under Section 32(2) of the VAT Act, exercise of such powers again by the first respondent, is permissible under law? - HELD THAT:- A plain reading of Section 32(1) of the VAT Act shows that the Commissioner may suo moto call for and examine the record of any order passed or proceeding recorded by any authority, officer or person subordinate to him under the provisions of the Act, including sub-section (2), if such order or proceeding is prejudicial to the interests of the revenue. Further, a reading of same also shows that in Section 32(2) of the VAT Act, the powers of revision are also conferred on Additional Commissioner, Joint Commissioner, Deputy Commissioner and Assistant Commissioner in case of orders passed or proceedings recorded by the authorities, officers or persons subordinate to them. The powers under Section 32(2) are to be exercised by the subordinates to the Commissioner. The exercise of powers under Section 32(2) are no other than the revisional powers akin to the powers conferred on the Commissioner. There is no denial of the fact that the authorities under the VAT Act are vested with the powers to make assessment etc. Whether the VAT dealer transferred the right to use the vehicles of him to the oil company or not is a question of fact and if the petitioner has suffered with any adverse findings in the impugned order, he ought to have challenged these factual aspects by filing an Appeal before the appellate authority but not by way of this Writ Petition under Article 226 of Constitution of India. Apart from that, the first respondent in the impugned order opined that the self serving certificate issued by the Oil Company, as regards collection of service tax cannot be taken as a valid document, when the same is disputed by the respondents. Hence, the petitioner cannot rely upon the above to support his contention. In RASHTRIYA ISPAT NIGAM LTD. VERSUS COMMERCIAL TAX OFFICER, COMPANY CIRCLE, VISAKHAPATNAM [1989 (12) TMI 325 - ANDHRA PRADESH HIGH COURT], it was held that the agreement has to be read as a whole in order to determine the nature of the transaction to ascertain the effective control of the machinery was in the use of the contractor or that of the company. The proper remedy for the petitioner would be to avail the remedy of Appeal in terms of Section 33 of the VAT Act. The material on record shows that the petitioner did not file the Appeal on the ground that filing of Appeal would make him to deposit 25% of the disputed tax. This cannot be a ground to file a Writ Petition under Article 226 of the Constitution, before this Court. The Hon'ble Apex Court in SETH CHAND RATAN VERSUS PANDIT DURGA PRASAD (D) BY LRS. & ORS. [2003 (3) TMI 703 - SUPREME COURT], while dealing with scope of Article 226 of the Constitution of India held that when a right or liability is created by a statue, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is no doubt a rule of policy, convenience and discretion and the Court may in exceptional cases issue a discretionary writ of certiorari, where there is complete lack of jurisdiction for the officer or authority or Tribunal to take the action or there has been a contravention of fundamental rights or there has been a violation of principles of natural justice or where the Tribunal acted under a provision of law, which are ultra vires. Then notwithstanding the existence of an alternative remedy, the High Court can exercise its jurisdiction to grant relief. Petition dismissed.
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