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M/s. Varun Tech Industries Versus The State of Andhra Pradesh And Others

2017 (12) TMI 263 - TELANGANA & ANDHRA PRADESH HIGH COURT

Validity of assessment order - time limitation - APVAT Act - case of petitioner is that out of the block period of 1.9.2005 to 31.3.2012, the period of 1.9.2005 to March 2009 falls beyond the limitation period of four years, that therefore respondent No.4 had no jurisdiction to pass such an order and that, as the power exercised by respondent No.4 is without jurisdiction - case of Revenue is that the writ petition was filed bypassing the effective alternative remedy of appeal before the A.P. VAT .....

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s an alternative remedy except in exceptional situations. - It is not the pleaded case of the petitioner that its case falls in any of the exceptions recognized by the Supreme Court as discussed above or that the issue raised in this writ petition cannot be adjudicated by the A.P. VAT Tribunal presided by no less an officer of a Special Grade District Judge - the petitioner is not entitled to invoke the jurisdiction of this Court without availing the statutory remedy of appeal before the Tri .....

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ttled that the jurisdiction under Article 226 of the Constitution of India is discretionary and this Court would not be compelled to adjudicate upon the merits of a case merely because a case is made out that the order challenged before it is illegal. While exercising the jurisdiction under Article 226 of the Constitution, this Court would consider the conduct of the party and the facts and circumstances of the case, before adjudicating the case on merits. - Limitation being a mixed question .....

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for not raising the objection in spite of repeated opportunities to raise such objection, both before the original and the appellate authority, would give rise to a presumption that it has deliberately not raised the issue in order to avoid a finding from the jurisdictional hierarchical authorities. - Petition dismissed - decided against petitioner. - Writ Petition No. 35336 of 2017 - Dated:- 1-11-2017 - C. V. Nagarjuna Reddy And Challa Kodanda Ram, JJ. For the Petitioner : Mr. P. Balaji Var .....

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ted hereunder. In pursuance of the authorisation issued by the Deputy Commissioner (CT) No.I Division, Vijayawada, respondent No.4 has inspected the business premises of the petitioner on 24.3.2012, verified the records and issued assessment proceedings in form VAT 305 dt.6.5.2013, assessing tax of ₹ 16,43,611/- for the period from 1.9.2005 to 31.3.2012 on best judgment basis. The petitioner filed an appeal before respondent No.2, which was partly allowed, partly remanded and partly dismis .....

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.2015 confirming the levy of tax of ₹ 11,22,885/-. Assailing the said assessment order, the petitioner again filed an appeal before respondent No.2. On considering the appeal on merits, respondent No.2 has dismissed the same on 31.3.2017. 3. At this stage, it needs to be noted that against every order passed by the Appellate Deputy Commissioner (CT), there is a remedy of appeal before the A.P. VAT Tribunal under Section 33 of the A.P. Value Added Tax Act, 2005. The petitioner, however, byp .....

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4. Mr. Shaik Jeelani Basha, learned Special Standing Counsel for Commercial Taxes (AP), strenuously opposed the writ petition contending (i) that the writ petition was filed bypassing the effective alternative remedy of appeal before the A.P. VAT Tribunal and that therefore the same is liable to be dismissed in limine and (ii) that as the petitioner has not raised the aspect of limitation in both the rounds of litigation before the Assessing Officer as well as the Deputy Commissioner, it is bar .....

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ot allow a litigant to bypass an alternative remedy except in exceptional situations. 6. The entitlement of a litigant to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India bypassing the alternative remedy fell for consideration of a Constitution Bench of the Supreme Court in Thansingh Nathmal v. Superintendent of Taxes AIR 1964 SC 1419 and it was held as under: The High Court does not therefore act as a court of appeal against the decision of a court or tri .....

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will leave the party applying to it to seek resort to the machinery so set up. A three-Judge Bench of the Supreme Court in Titaghur Paper Mills Co. Ltd. (1983) 2 SCC 433 held: 11. … 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. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford [(1859) 6 CBNS 33 .....

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nd 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. [1919 AC 368 : (1918-19) All ER Rep 61 (HL)] and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd. [1935 AC 532] and Secy. of State v. Mask and Co. [(1939-40) 67 IA 222 : AIR 1940 PC 105] It has also been held to be equally applicable to enforcement .....

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e action; (b) there has been a violation of rights of natural justice and (c) where the Tribunal acted under a provision of law which is declared ultra vires. 8. In State of Himachal Pradesh v. Gujarat Ambuja Cement Ltd. (2005) 6 SCC 499 a three-Judge Bench of the Supreme Court exhaustively dealt with the case law on the rule of alternative remedy. Paragraphs 18 to 21 of the judgment, which are relevant, read as under: 18. The Constitution Benches of this Court in K.S. Rashid and Son v. Income T .....

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medy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted. 19. Another Constitution Bench of this Court in State of M.P. v. B .....

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Kumar [(1965) 2 SCR 653 : AIR 1965 SC 1321] ; Siliguri Municipality v. Amalendu Das [(1984) 2 SCC 436 : 1984 SCC (Tax) 133 : AIR 1984 SC 653] ; S.T. Muthusami v. K. Natarajan [(1988) 1 SCC 572 : AIR 1988 SC 616] ; Rajasthan SRTC v. Krishna Kant [(1995) 5 SCC 75 : 1995 SCC (L&S) 1207 : (1995) 31 ATC 110 : AIR 1995 SC 1715] ; Kerala SEB v. Kurien E. Kalathil [(2000) 6 SCC 293 : AIR 2000 SC 2573] ; A. Venkatasubbiah Naidu v. S. Chellappan [(2000) 7 SCC 695] ; L.L. Sudhakar Reddy v. State of A. .....

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f compulsion and the Court must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the petitioner seeks enforcement of any of the fundamental rights; where there is failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. 21. In G. Veerappa Pillai v. Raman & Raman Ltd. [1952 SCR 583 : AIR 1952 SC 192] ; CCE v. Dunlop India Ltd. [(1985) 1 SCC 260 : 1985 SCC (T .....

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8 SCC 1 : AIR 1999 SC 22] ; Tin Plate Co. of India Ltd. v. State of Bihar [(1998) 8 SCC 272 : AIR 1999 SC 74] ; Sheela Devi v. Jaspal Singh [(1999) 1 SCC 209] and Punjab National Bank v. O.C. Krishnan [(2001) 6 SCC 569] , this Court held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction. 9. After considering a slew of case law as noted above, the Supreme Court has carved out the following exceptions to the .....

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hich they do not possess. 10. In Union of India v. Major General Shri Kant Sharma, (2015) 6 SCC 773 a three-Judge Bench of the Supreme Court, upon copious reference to the judicial precedents, summarised the law in paragraph 36 of the report, as under: (i) The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including the Armed Forces Tribunal Act, 2007 cannot override or curtail jurisdiction of the .....

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se their jurisdiction consistent with the provisions of the Act. (Refer: Mafatlal Industries Ltd. [(1997) 5 SCC 536]). (iii) When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Refer: Nivedita Sharma v. Cellular Operators Association of India [(2011) 14 SCC 337 : (2012) 4 SCC (Civ) 947] . (iv) The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternat .....

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t Judge. 12. In the light of the above discussion, the petitioner is not entitled to invoke the jurisdiction of this Court without availing the statutory remedy of appeal before the Tribunal. 13. As regards the second submission of the learned Standing Counsel, the learned counsel for the petitioner conceded that the issue of limitation was not raised in the objections filed by the petitioner before respondent No.4 either initially, or after the remand before respondent No.3. He has also admitte .....

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our opinion, the counsel for the petitioner is labouring under a misconception that this Court has duty and obligation to entertain writ petitions in order to set aside every wrong or illegal order. The law is well settled that the jurisdiction under Article 226 of the Constitution of India is discretionary and this Court would not be compelled to adjudicate upon the merits of a case merely because a case is made out that the order challenged before it is illegal. While exercising the jurisdict .....

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iscretionary and though no limits can be placed upon that discretion it must be exercised along recognised lines and not arbitrarily; and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, f .....

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ise must be judicious and reasonable, admits of no controversy. It is for that reason, a person's entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it w .....

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d to indulge in multiplicity of actions. The exercise of discretion to issue a writ is a matter of granting equitable relief. It is a remedy in equity. In the present case, the High Court declined to interfere at the instance of the appellant having noticed the above clinching facts. No fault can be found with the approach of the High Court in refusing to exercise its writ jurisdiction because of the conduct of the appellant in pursuing multiple proceedings for the same relief and also because t .....

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it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment. In the concluding portion of the judgment it was further held: (x) … The power under Article 226 is conceived to serve the en .....

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tion on the part of respondent No.4 for passing an assessment order for the period between 1.9.2005 and March, 2009. Not only in its objections filed before the Assessing Officer before passing of the initial assessment order, but also in the first round of appeal filed by it, before respondent No.3 and in the second round of appeal filed before respondent No.2 after the remand, the petitioner has failed to raise the plea of limitation. Limitation being a mixed question of law and fact, has to b .....

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