TMI Blog2013 (6) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... of writ petition involves any complicated and disputed question of fact and whether they can satisfactorily be resolved. On the facts of the present case,it is not in a position to arrive at a definite conclusion or finding in terms of section 21(6) of the U.P. Trade Tax Act to uphold the submission of the petitioner. Having regard view of the fact that the disputed questions of fact are involved and statutory forum by way of appeal is available to the petitioner, thus court declines to interfere in the present writ petition. When the question of limitation is dependent upon the adjudication of certain facts, then, it cannot be said that it is related to the jurisdiction of the authority or is a jurisdictional issue, as in the present case. The factual aspect of the case should be decided by the statutory forum first, in such matters. Writ petition dismissed on the ground of availability of alternative remedy of appeal. - Writ Tax No.-530 of 2013 - - - Dated:- 24-5-2013 - Prakash Krishna And Manoj Kumar Gupta,JJ. For the Petitioner : Shubham Agrawal,Bharat Ji Agrawal For the Respondent : C.S.C. JUDGMENT (Delivered by Prakash Krishna, J) By means of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned senior counsel for the petitioner submitted that on the facts of the present case, the alternative remedy by way of statutory appeal will not bar the present writ petition as the impugned order is totally without jurisdiction and at least it is erroneous. Considered the respective submissions of the learned counsel for the parties and perused the record. The Court was taken through the relevant portions of the assessment order to show that the question of limitation has been wrongly decided by the Assessing Authority. The submission is that the Assessing Authority has wrongly assumed that the period of limitation will commence from the date of rejection of the restoration application. Elaborating the argument, it was submitted that after dismissal of the writ petition no.154 of 2007, no interim order was operative. The period of limitation will commence from the date of communication of the dismissal order dismissing the writ petition to the authority concerned. On the question of alternative remedy, the learned Senior Counsel, submitted that in view of the decision relied upon by him, the petition is not liable to be thrown on the ground of alternative remedy. A bar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of receipt by the assessing authority of the order vacating the stay." On a careful consideration of the matter, we find that the statutory requirement is the date of receipt of the order by the Assessing Authority concerned and not mere knowledge of the order. The leaned counsel for the petitioner could not refer any iota of evidence to show on what date the judgment of writ court was received by the Assessing Authority. He wants this Court to draw inference about the date of the service of judgment which is not possible. What we mean to say is that complicated and disputed question of fact with regard to the date of communication of the judgment of Writ Court is involved. This can more properly be examined and addressed by the authority having the complete record including the assessment file and the receipt register etc.. In the case of Satyawati Tandon the Apex Court has laid down that before exercise of jurisdiction under Article 226 of the Constitution of India, the Court should have recorded as to whether adjudication of writ petition involves any complicated and disputed question of fact and whether they can satisfactorily be resolved. On the facts of the present cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hort-levy of excise duty related to any positive act on the part of the appellant by way of fraud, collusion, willful mis-statement or suppression of facts, the extended period of limitation could not have been invoked and in that view of the matter no show cause notice in terms of Rule 10 could have been issued." The above quoted paragraph is not applicable to the issue on hand viz. the maintainability of the writ petition in the face of availability of alternative remedy by way of appeal. Moreover, the Assessing Officer has determined the said question of limitation, may be, rightly or wrongly. In the case of State of Jharkhand Vs. Voltas Limited, (2007) 7 VST 317 the question of limitation was decided by the Supreme Court on the facts of that case and is not of much assistance to the petitioner. The Apex Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, (1998) 8 SCC 1 has laid down certain exceptions for exercise of writ jurisdiction on the face of availability of alternative remedy. They are -- (1) When the order passed by the authority is without jurisdiction; (2) When the impugned order has been passed in violation of principles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icular remedy for enforcing it. . .the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to." The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant Co. Ltd. and Secretary of State v. Mask Co. (AIR 1940 PC 105). It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine." 21. The views expressed in Titaghur Paper Mills Co. Ltd. v. State of Orissa (AIR 1983 SC 603) (supra) were echoed in Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. and others (1985) 1 SCC 260 : (AIR 1985 SC 330) in the following words: "Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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