TMI Blog2014 (9) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... Having not availed the statutory remedy of appeal, the petitioner cannot turn around and challenge the notices of demand on the ground that the certified copies of the assessment orders were not issued to him and the petitioner was not able to avail of the statutory remedy of appeal. Therefore, the petitioner cannot seek for a direction upon the respondents to issue certified copies of the assessment orders to pursue the statutory remedy of appeal. If the party is aggrieved by the order of the Certificate Officer, it is always open to him to pursue the remedy of appeal as per the provisions of Section 60 of the PDR Act. In our considered view, the petitioners have filed the writ petitions circumventing the procedures of the Bihar and Orissa Public Demands Recovery Act, 1914 and the provisions of the appeal thereon and by invoking the writ jurisdiction, the petitioners are directly trying to agitate the issues based on facts and on consideration of evidence. When efficacious alternative remedy is available to the petitioners, no relief can be granted to the petitioners in these writ petitions - The order of winding up of the petitioner company is subsequent to the initiation of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar and Orissa Public Demands Recovery Act, 1914 (for short PDR Act) in connection with Certificate Case No.3/2010-11 initiated on the basis of the requisition for a certificate by the 2nd respondent for realization of the alleged dues of ₹ 1,09,25,649/-. On receipt of the aforesaid notice under Section 7 of the PDR Act, the petitioner filed his objections under Section 9 of the PDR Act on 18.4.2011, interalia, praying to drop the aforesaid certificate proceedings for the reasons mentioned therein and the certificate proceeding is pending. According to the petitioner, there is liquidation/winding up proceedings pending against the petitioner in the Calcutta High Court in Company Petition No.314/2007 and vide order dated 2.2.2013, the Calcutta High Court passed the order of winding up. Under these circumstances, the petitioner has filed this writ petition for quashing the demand notices and also the certificate proceeding, which is pending. 4. Learned Senior Counsel, Mr.B.Poddar, contended that the assessment orders were passed and copy of the assessment orders were not supplied and therefore, the notices of demand issued are liable to be quashed. Learned Senior Counsel subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and notices and Certificate Proceedings by invoking the writ jurisdiction. 7. Without availing the statutory remedy available under the Bihar Sales Tax Act and the PDR Act, the petitioner has invoked the writ jurisdiction, challenging the demand notices and also Certificate Case No.3/2010-11 initiated for realization of the dues. For proper appreciation of the contentious pointed raised, we may usefully refer to the details of the assessment, date of institution, date of proceedings, date of order and date of demand notices and the date of receipt and amount involved and outstanding dues payable by the writ petitioner in W.P(T) No.1967/2013. 8. By perusal of the averments in the counter-affidavit, date of initiation of the assessment proceedings and various notices of demand served upon the petitioner, it is seen that the petitioner appeared in the assessment proceedings and subsequently did not appear and pursue the matter. In so far as the assessment relating to the financial year 2001-02, the first notice bearing no.658 dated 4.9.2004 was issued to the petitioner. As per Section 16(1) and 16(5) of the Bihar Finance Act, 1981, the petitioner is required to file its ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed or such amount of tax as the appellant may admit to be due from him, whichever is greater. 10. The grievance of the petitioner is that he was not served with the certified copy of the various assessment orders and therefore, the petitioner could not prefer appeal. The petitioner, therefore, seeks for quashing the demand notices as the 2nd respondent has not supplied certified copies of the assessment orders for the aforesaid period despite filing of appropriate applications (vide Annexure 3 series - challans) for obtaining certified copies of the assessment orders. 11. Even at the outset, it is to be pointed out that though the petitioner appeared in the assessment proceedings, the petitioner did not bother to apply for the certified copies of the assessment orders for the years 2001-2002 immediately after passing of the assessment order on 18.3.2006. As pointed out above, demand notices dated 22.3.2006 (2001- 2002), 20.6.2006 (2002-2003) were served upon the petitioner on 30.8.2007 and only thereafter on 30.8.2007, the petitioner seemed to have submitted application for issuance of certified copy of the assessment order for 2001-02 and 2002-03. Likewise for the financi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as sent reminders on 7.12.2009, 9.8.2010 and 7.12.2010 stating that the petitioner requires certified copies of the assessment order for the periods 1994-95 to 2005-06. When the petitioner has not filed appropriate application in the prescribed Form No.124 for obtaining certified copies of the assessment order, the Department cannot be blamed for non-supply of the certified copies of the assessment orders. 13. It is pertinent to point out that while the petitioner was pursuing writ petition, W.P(C) No.167/2005, the petitioner did not seem to have been diligent in pursuing his application for certified copies of the assessment orders. When there is delay and laches on the part of the petitioner, the Court will be loath to come to the aid of such person. Challenging the certificate proceeding and having not filed appropriate application in the prescribed Form, the petitioner cannot plead for showing indulgence. In fact, W.P(C) No.167/2005 was dismissed on 22.12.2008 giving liberty to the petitioner to avail the statutory remedy of appeal for redressal of its grievance. Having not availed the statutory remedy of appeal, the petitioner cannot turn around and challenge the notices of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n September, 1969 was sought to be revised by the Deputy Commissioner under Section 20(2) of the Andhra Pradesh General Sales Tax Act, 1957 and he passed an order prejudicial to the assessee and the order was said to have been made in January, 6, 1973 but it was served after the expiry of four years from the date of the assessment order, on the assessee on November, 21, 1973, 10 months later and there was no explanation by the Deputy Commissioner why the service of the order was so delayed. In such facts and circumstances of the case, Hon ble Supreme Court held that there was no explanation by the Deputy Commissioner as to why the service of the order was so delayed. Likewise, in the facts and circumstances of the case and also upon perusal of the records in M/s.MECON Limited, the Division Bench of this Court followed the judgment of Hon ble Supreme Court rendered in [1994] 93 STC 406 (SC). 16. The case on hand is clearly distinguishable on facts. As pointed out earlier, challenging the order of the Deputy Commissionercum District Certificate Officer dated 25.11.2004 demanding payment of ₹ 7,50,059.99 relating to the financial year 2001-02, the petitioner has filed W.P(C) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that sales tax demand notices were not under challenge in the writ petitions, rather certificate proceeding itself has been challenged. On such representation, the writ petitions were dismissed as withdrawn giving liberty to the petitioner to challenge the demand notices and in pursuance of the aforesaid liberty, the present writ petitions are filed. 18. Section 6 of the PDR Act provides that on receipt of any such requisition the Certificate Officer, if he is satisfied that the demand is recoverable and that recovery by suit is not barred by law, may sign a certificate, stating that the demand is due and shall cause the certificate to be filed in his office. Section 7 stipulates service of notice and copy of certificate on certificate debtor. Section 9 provides that the certificate12 debtor may, within the prescribed period, file a petition in the prescribed form denying his liability in whole or in part. Section 10 casts statutory obligation upon the Certificate Officer to hear a petition, take evidence (if necessary) and determine whether the certificate-debtor is liable for the whole or in part of the amount for which certificate was signed and may set aside, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. 21. The views expressed in Titaghur Paper Mills Co. Ltd. v. State of Orissa (1983) 2 SCC 433 were reiterated in [(1985) 1 SCC 260] (Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. and others) in the following words: 3. ..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 situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer regarding the winding up order passed on 2.2.2013 and merely on the ground of pendency of the winding up petition, the certificate proceedings cannot be quashed. 25. It must be remembered that the certificate proceeding is initiated by the State for recovery of its tax along with interest/penalty under the Bihar and Orissa Public Demands Recovery Act, 1914 contains a detailed mechanism for redressal of the grievance of the petitioner by hearing the matter and also by filing of appeal. Such statutory procedure cannot be circumvented by entertaining writ petition under Article 226 of the Constitution of India. To entertain such writ petition would have serious adverse impact on the right of the State to recover its huge outstanding dues and therefore, the writ petition is liable to be dismissed. 26. In so far as other writ petitions, W.P(T) No.1968/2013 and W.P(T) No.1964/2013, are concerned, the point involved is one and same (except the Company Petition for winding up) and only the orders of assessment and the amount and the date of notices vary. In W.P(T) No.1968/2013 (Vishal Industries) the requisition for the certificate was for an amount of ₹ 20,15,823/- in Cert ..... X X X X Extracts X X X X X X X X Extracts X X X X
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