TMI Blog2014 (5) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... rarchy of departmental remedies. The ordinary rule of prudence would warrant relegating the assessee to a departmental remedy first - The Court should address an issue of constitutional validity only when it is necessary to do so - The Appellate Authority would be within its jurisdiction in considering the judgment of a Division Bench of this Court in M/s. A.C.P.L. Jewels v. UOI [2009 (12) TMI 849 - ALLAHABAD HIGH COURT] and determining whether the dictum which has been laid down there would apply to the facts of the case - Consequently, at this stage in the considered exercise of our discretionary jurisdiction, it would not be appropriate or proper for this Court to entertain the petition – Matter remitted back to Appellate Authority – ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exports only on account of the refusal of Maharashtra VAT authorities to supply Forms F and the consequent inability of the petitioner to furnish the same to the respondent No.4. (c) Issue a writ, order or direction in the nature of Mandamus restraining the respondents from recovering Rs.8,67,32,305/- from the petitioner. The petitioner had moved an earlier writ proceeding before this Court when a notice to show-cause had been issued by the Deputy Commissioner, Commercial Taxes for the Assessment Year 2009-10. The petitioner, at that stage, sought an order restraining the Assessing Officer from deeming those sales in the course of export which are duly covered by Form-H between its branch office at Sahibabad and head office at Mumba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to pay tax on inter-State sales. Any transaction which does not fall within the definition of sale would not be exigible to tax, the burden whereof would evidently be on the assessee. We have noticed hereinbefore that whereas prior to the amendment in sub-section (1) of Section 6-A the dealer had an option of filing a declaration in Form F; after such amendment, he does not have such option, insofar as in terms of the amended provision, if the dealer fails and/or neglects to file such a declaration, the transaction would be deemed to be an inter-State sale. It is to be noticed that for the aforementioned purpose also, Parliament advisedly used the expression deemed . If the expression deemed is interpreted differently, an incongruit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the order which has been passed by the Assessing Officer. Undoubtedly, the constitutional validity of Section 6-A of the Act cannot be considered or decided in a departmental appeal. A challenge to constitutional validity can be resolved in writ proceedings, but it is equally well settled that a challenge to constitutional validity should not be considered in a vacuum, particularly in a matter where the fiscal legislation provides a hierarchy of departmental remedies. The ordinary rule of prudence would warrant relegating the assessee to a departmental remedy first. The Court should address an issue of constitutional validity only when it is necessary to do so. As the submission of the petitioner before the Court would indicate, the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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