TMI Blog1998 (5) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... e orders passed by respondent No. 3, the Commissioner of Commercial Taxes, Government of Bihar, dated December 24, 1997 (annexure 10) who refused to exercise his powers of suo motu revision, inter alia, on the ground that the alternative remedy of appeal available to the petitioner has not been exhausted. 4.. Lastly, the petitioner has also challenged the orders dated January 20, 1998, passed by respondent No. 4, the Joint Commissioner of Commercial Taxes (Appeal), Jamshedpur, vide annexure 11, who rejected the appeal for noncompliance of the provisions of sub-section (3) of section 45 of the Act as the petitioner did not deposit 20 per cent of the tax assessed or full amount of the admitted tax, whichever is greater. 20 per cent of the total assessed tax comes to Rs. 11.33 crores (rupees eleven crores and thirty-three lakhs), out of which the petitioner appears to have deposited only Rs. 6.24 crores (rupees six crores and twenty-four lakhs) and the balance amount of Rs. 5.9 crores (rupees five crores and nine lakhs) remains to be deposited. 5.. Thus, the grounds set out in the petition for quashing the assessment orders, the demand notice issued pursuant thereto as well as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imately (rupees forty-six crores approximately). (B) The petitioner has also challenged that respondent No. 2 has wrongly rejected the claim of export sale for Rs. 51,94,47,302 (rupees fifty-one crores ninety-four lakhs forty-seven thousand three hundred and two) and treated it to be inter-State sale and levied tax at 8 per cent thereon which comes to Rs. 4 crores (rupees four crores) approximately. (C) The petitioner has further challenged the rejection of claim of concessional levy of tax on inter-State sale to registered dealer for Rs. 1,04,95,382.15 (rupees one crore four lakhs ninety-five thousand three hundred eighty-two and paise fifteen) and levied tax at 8 per cent thereon while rejecting the claim of rebate under section 16(10) of the Act. 7.. Repudiating the claims as set out by the petitioner both on legal and factual grounds, it is contended on behalf of the respondents that without availing of the statutory remedy of appeal as provided under the provisions of section 45(3) of the Act whereby the petitioner is required to deposit Rs. 11.33 crores which is a pre-condition before admitting the appeal, this writ petition is not maintainable. 8.. Without prejudice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has no legal force as the State is at liberty to enact its own law as per entry 54, List II-State List of the Seventh Schedule to the Constitution. As the Bihar Finance Act has been enacted as per entry 54 of List II-State List of the Seventh Schedule to the Constitution, it is valid in all respects and the question of infringement of article 14 does not arise. 13.. Equal protection guaranteed under article 14 of the Constitution only speaks of equal protection amongst the persons and class of persons of the same category. Thus, what article 14 of the Constitution prohibits is unequal treatment to the persons similarly situated meaning thereby that the traders of a particular State cannot and should not be discriminated. The words occurring in article 14 of the Constitution within the territory of India in this context may not be narrowly construed as it does not mean that there should be only one and uniform law, rule, order or by-laws throughout all the States comprised within the Union Territory while enacting the taxing laws. 14. If the taxing statutes have been enacted in accordance with the legislative competence and relevant entry made in the State List of the Sevent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the pre-deposit is heavy or this condition is not uniform as compared to other States and, therefore, it is violative of petitioner s fundamental right to carry on a trade. It is well-settled that power to tax being an incident of sovereignty in our federal structure, one sovereign is not constitutionally permitted to tax other sovereign. Hence, there cannot be similarity in taxing laws of all States. 18. Therefore, submission made by the learned counsel for the petitioner that no other sales tax law in India contains any similar fetter on the right to file first appeal imposing a condition of pre-deposit as per sub-section (3) of section 45 of the Act without any power with the appellate authority to waive or dispense with that condition in appropriate cases creating unreasonable restriction on petitioner s right to file first appeal has no force and is hereby repelled. 19.. As far as the second ground argued by the learned counsel for the petitioner that the impugned provisions of sub-section (3) of section 45 of the Act impose an unreasonable restriction to the fundamental right guaranteed to the petitioner under article 19(1)(g) is concerned, this submission has also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... borne out from this provision that appeal even without 20 per cent deposit of the assessed amount can be filed but the same cannot be admitted, meaning thereby the appeal cannot be heard or disposed of or stay application cannot be considered without pre-deposit of 20 per cent of the assessed tax. We fail to appreciate how pre-deposit of 20 per cent of the assessed tax before the admission of the appeal is onerous as to amount to unreasonable restriction rendering the right of appeal almost illusory infringing the petitioner s right under article 19(1)(g) as also under article 14 of the Constitution. 21.. In the case of Shyam Kishore v. Municipal Corporation of Delhi AIR 1992 SC 2279 their Lordships have taken into consideration the decision in the case of Elora Construction Company v. Municipal Corporation of Greater Bombay AIR 1980 Bom 162, wherein while dealing with the validity of section 217 of the Bombay Municipal Corporation Act wherein the right of appeal was similarly restricted and the restriction so imposed was challenged on the ground that it is violative of article 19(1)(f), the argument was repelled by the learned Judge (honourable Bharucha, J. as His Lordship then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t this stage, we may point out that to facilitate the traders, the whole machinery of appeal and revision is provided so that if a wrong is committed during the course of assessment the same may be rectified in appeal or revision, as the case may be. Therefore, to maintain the mercantile discipline it is expected that statutory provision according to its mandate be acted upon instead of purloining the same by resorting to the manner which suits the needs of the litigants and runs contrary to the imperative provision. 29.. Thus, in view of the foregoing discussions, the submission made to the effect that the impugned provisions of sub-section (3) of section 45 of the Act imposed an unreasonable restriction to the fundamental right guaranteed under article 19(1)(g) is without any merit. Therefore, the submissions made that the provisions of sub-section (3) of section 45 of the Act for depositing 20 per cent of the assessed tax before the admission of the appeal is so onerous as to amount unreasonable restriction rendering the right of appeal almost illusory, has no force at all as the condition of pre-deposit is neither onerous nor it makes the right of appeal illusory inasmuch as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33.. The right of suit or original proceeding is an inherent right in every litigant but even for filing a suit a litigant is required to pay court-fee according to Schedule-fixed or ad valorem. The right of appeal is a creature of the statute and the Legislature while granting this right of appeal has imposed a condition for the exercise of such right, therefore, so long the conditions are not so onerous or amount to unreasonable restriction how the right of appeal is illusory. It is the settled principle of law that the right of appeal inheres in no one and, therefore, for its maintainability there must be some authority of law as in the instant case sub-section (3) of section 45 of the Act confers a right of appeal. This proposition is well-settled in the case of Ganga Bai v. Vijay Kumar [1974] 3 SCR 882. Thus, there is no force in the above submission of learned counsel for the petitioner. 34.. Time and again though argued that sub-section (3) of section 45 of the Act is violative of the constitutional provision but the same has not been substantiated and cannot be, and rightly so, as the petitioner in this regard has no leg to stand in view of clause (6) of article 19 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench. 37.. How true it is that despite the above observations made in para 4 of the abovesaid judgment that the High Court should not entertain the writ petition at interlocutory stage when assessment has not been done or even if assessment has been done, the assessee may resort to the adequate statutory remedy by way of appeal or revision against the assessment order, yet how strange it is that the petitioner is still insisting before this Court to consider its case and decide total assessment in writ jurisdiction meaning thereby to convert this Court into an appellate court in order to facilitate the petitioner to circumvent the statutory provisions so that 20 per cent of the assessed tax may not be required to be deposited in appeal by way of pre-deposit, which comes in crores of rupees. 38.. Therefore, in the back-drop of preceding paragraphs, the germane question that arises for our consideration is, if by ignoring the binding precedent, i.e., Tata Iron and Steel Co. Ltd. case 1986 PLJR 477 and Tata Engineering and Locomotive Co. Ltd. case [1997] 9 JT 81 (SC), the petitioner files petition after petition, what yard-stick is to be applied? 39.. In this regard, we may aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsons in their business relation and in making contract have acted on the faith of correctness and in reliance of its contents as rule of law so that rights have become vested which is seriously impaired if the precedent is reversed. 44.. Our country after independence is developing gradually in all fields of life including that of legislation and thus under the modern condition legislative modifications of laws are bound to be confined to major changes. Thus, gradual and orderly development of law can only be accomplished by judicial interpretation and hence this function of interpretation and declaration of law is assigned to the judiciary and the declaration of law made by the courts is also a law within the meaning of article 141 of the Constitution of India having binding force. Therefore, the founding father of the Constitution have legislated after intensive deliberation article 141 of the Constitution which, indeed, recognises the role of the apex Court to be played in respect of judicial interpretation. Hence, once the point is settled by declaring the law on an issue by the Supreme Court, all courts in India are duty bound to act in accordance with it by giving due dili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he law which can only be discovered where huge amount of tax is involved and ipso facto has to be taken into consideration. Therefore, it cannot be said that since in the instant case a sum of Rs. 50 crores (approximately) is involved, therefore, the decision rendered earlier, as referred to above, requires reconsideration. 49.. During the course of argument, we have already disclosed our mind that under the writ prerogative, the decision of the assessing authority cannot be gone into as the writ courts neither sit as an appellate or revisional court nor convert themselves into it. Thus, only the decision making process is to be examined where the parties have approached the judicial review court under article 226 of the Constitution after exhausting the alternative statutory remedy and, therefore, only question relating vires is being considered and decided. 50.. In the instant case though the remedy of appeal was invoked but without complying with the mandatory requirement of sub-section (3) of section 45 of the Act and without exhausting that remedy, under the garb of challenging the vires of the provisions of sub-section (3) of section 45 of the Act, or to say on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw or in fact. R v. Weston-Super-Mare, JJ., ex parte Barkers (Contractors) Ltd. [1944] 1 All ER 747. 53.. Recently in Mafatlal case [1998] 111 STC 467 (SC); [1997] 5 SCC 536, in para 108 their Lordship have held that while exercising the jurisdiction under article 226, a writ court cannot be circumscribed by the provisions of the enactment, but having due regard to the legislative intent evidenced by the provisions of the Act would exercise their jurisdiction consistent with the provisions of the Act. This is how power under article 226 has to be exercised to effectuate the regime of law and not for abrogating it. Even while acting in exercise of said constitutional power, High Court cannot ignore the law nor can it override it. The power under article 226 is conceived to serve the ends of law and not to transgress them. It is for this reason that power under article 226 is to be exercised to effectuate the rule of law and not for abrogating it. 54.. Thus, to maintain the sanctity of what has been said by the apex Court in Mafatlal case [1998] 111 STC 467 (SC); [1997] 5 SCC 536, article 226 has to be exercised to effectuate the rule of law and not for abrogating it. Here in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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