TMI Blog2015 (6) TMI 1155X X X X Extracts X X X X X X X X Extracts X X X X ..... blished by law be corrected only by a court of appeal or revision. The writ petitioner has not only an alternative and efficacious, rather a proper remedy under the provisions of H.P. VAT Act, 2005 and therefore, the present petition is not maintainable. Petition dismissed being not maintainable. - CWP No. 1596 of 2015 - - - Dated:- 20-6-2015 - Mansoor Ahmad Mir C. J. AND Tarlok Singh Chauhan, J. Tarun Gulati with Sanjeev Bhushan and Shashi Mathews for the petitioner Shrawan Dogra, Advocate General with Romesh Verma, Additional Advocate General, J. K. Verma and Vikram Singh Thakur, Deputy Advocate Generals, for the respondents JUDGMENT By medium of this petition, the petitioner has called in question the show cause notice issued by respondent No. 4 on 22.12.2014 under section 16(8) of the Himachal Pradesh Value Added Tax Act, 2005 (for short, H.P. VAT Act, 2005). The petitioner has been asked to personally appear alongwith the relevant documents for the years 2010-2012 to 2014-2015 (up to 30.11.2014) for the reason that petitioner was paying VAT at the rate of 5% on the sale of cellphone chargers and other accessories instead of 13.75%. The petitioner is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) where there is a failure of principle of natural justice; or (3) where order or proceedings are wholly without jurisdiction or vires of the Act is challenged; or (4) where the statutory authority has not acted in accordance with the provisions of the enactment in question; or in defiance of the Fundamental principles of judicial procedure. 4. The learned counsel for the petitioner has further argued that the impugned notice dated 22.12.2014 issued by respondent No.4 proposing to levy penalty is without jurisdiction as no notice was issued to assess tax at higher rate and therefore, in the absence of assessment at higher rate, question of imposition of penalty would not arise. He further argued that the impugned order dated 3.3.2015 passed under section 16 pursuant to notice under section 16(8) does not impose penalty but seeks to assess tax at higher rate and in absence of notice in form XXIX under section 21 read with Rule 67, no assessment could be made and therefore, the impugned order is without jurisdiction as it was issued without following the prescribed procedure. The respondent No. 3, who had passed the impugned order, cannot be regarded as an Assessing Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which mere non-compliance with the rules of procedure has been made a ground for granting one of the write prayed for. In either case, the 'defect, if any, can according to the procedure established by law be corrected only by a Ct. of appeal or revision. Here, the appellate Ct. which was competent to deal with the matter has pronounced its judgment against the petitioners. the manner having been finally decided is not one to be reopened in a proceeding under Art. 32 of the Constitution. 8. Now in so far as the contention of the petitioner that a subsequent judgement i.e. Nokia s case (supra) cannot be used to change the course of past assessment is concerned, it is more than settled that the judgements of the courts declare the law as it was always. Though the courts some time order that the judgements would have prospective effect, but in absence of such restrictions, the law declared by the courts is deemed to be always the law so interpreted i.e. the law as it stood right from the beginning as per its decision. 9. In Sarwan Kumar and another vs. Madan Lal Aggarwal (2003) 4 SCC 147 , the Hon ble Supreme Court has held as follows:- 20. ..When the court deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emedy existed under the H.P. VAT Act, 2005 and this court held as follows:- 6. Before we deal with the question of maintainability of the writ petitions, we deem it proper to make a brief reference to the averments contained in the leading writ petition, (CWP No.4779 of 2014), which are, by and large, similar in the other writ petitions. It is averred in the writ petition that the Assessing Authority has not heard the petitioners before making the impugned orders, and thus, have been passed without providing sufficient opportunity of being heard to the writ petitioners. It is also pleaded that the impugned orders have been passed in a biased manner, under the dictation of high officials. It is further pleaded that the impugned orders have been passed without jurisdiction, though, during the course of hearing, as discussed hereinabove, no such argument was advanced to substantiate the fact that the Assessing Authority passed the impugned orders without jurisdiction or that the said Authority has acted with bias. 7. Now, coming to the core question of maintainability of the writ petitions, in terms of the HP VAT Act, 2005, the Assessing Authority is vested with the authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se may be: Provided that if such Authority is satisfied that the dealer is unable to pay the tax (including interest payable) assessed or the penalty, if any, imposed or both, he may, for reasons to be recorded in writing, entertain an appeal without the tax (including interest payable) or penalty or both having been paid in full or after part payment of such tax (including interest payable) or penalty or both. (6) Subject to such rules of procedure as may be prescribed, an Appellate Authority may pass such order on appeal as it deems just and proper. 46. Revision. - (1) The Commissioner may, of his own motion, call for the record of any proceedings which are pending before, or have been disposed of by, any Authority subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such proceedings or order made therein and, on finding the proceedings or the orders prejudicial to the interest of revenue, may pass such order in relation thereto as he may think fit: Provided that the powers under this sub-section shall be exercisable only within a period of five years from the date on which such order was communicated. (2) The St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HP VAT Act, 2005 clearly provides that if the order is made by an Assessing Authority or by an officer in charge of the check post or barrier or any other officer not below the rank of the Excise and Taxation Officer, the appeal against such order shall lie to the Deputy Excise and Taxation Commissioner; if the order is made by the Deputy Excise and Taxation Commissioner, the same can be appealed before the Commissioner or the Additional Excise and Taxation Commissioner, posted at the State Headquarters; and if the order is made by the Commissioner or the Additional Excise and Taxation Commissioner posted at the State Headquarters any officer exercising the powers of the Commissioner, the same is appealable before the Tribunal. Sub Section (2) of Section 45 of the HP VAT Act, 2005 further provides that an order passed in appeal by a Deputy Excise and Taxation Commissioner or by the Additional Excise and Taxation Commissioner posted at the State Headquarters or by the Commissioner or any officer, on whom the powers of the Commissioner are conferred, shall be appealable before the Tribunal. 10. Admittedly, the impugned orders, in the present cases, have been issued by the Assistan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1, this Court held: 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of the Fundamental Rights or where there has been a violation of the principle of natural justices or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged...... xxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxxxx 14. Having said so, we have gone through the orders passed by the Tribunal. The only determination made by the Tribunal is with regard to the assessable value of the commodity in question by excluding the freight/ transportation charges and the insurance charges from the assessable value of the commodi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal to the respondents. 14. The Apex Court in a recent decision in Commissioner of Income Tax and others vs. Chhabil Dass Agarwal, (2014) 1 SCC 603, has discussed the law, on the subject, right from the year 1859 till the date of judgment i.e. 8th August, 2013. We deem it proper to reproduce paragraphs 12, 13, 15, 16 and 17 hereunder: 12. The Constitution Benches of this Court in K.S. Rashid and Sons vs. Income Tax Investigation Commission, AIR 1954 SC 207; Sangram Singh vs. Election Tribunal, AIR 1955 SC 425; Union of India vs. T.R. Varma, AIR 1957 SC 882; State of U.P. vs. Mohd. Nooh, AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. vs. State of Madras, AIR 1966 SC 1089, have held that though Article 226 confers very wide powers in the matter of issuing writs on the High Court, the remedy of writ is absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural justice or the proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . in Wolverhampton New Waterworks Co. v. Hawkesford, 141 ER 486 in the following passage: (ER p. 495) There are three classes of cases in which a liability may be established founded upon a statute. But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular 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., 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd., 1935 AC 532 (PC) and Secy. Of State v. Mask and 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. 14. In Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case AIR 1964 SC 1419, Titagarh Paper Mills case 1983 SCC (Tax) 131 and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 16. In the instant case, the Act provides complete machinery for the assessment/re-assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are aimed at to give a slip to law for the reason that the petitioners have to deposit the tax liability, alongwith interest payable, as assessed, and penalty, if any, imposed, in terms of Section 45(5) of HP VAT Act, 2005, referred to above, which provides that no appeal has to be entertained unless it is accompanied by satisfactory proof of the payment of tax including interest payable alongwith penalty, if any, imposed, subject to exception provided by proviso to sub section (5) of Section 45 of the HP VAT Act, 2005. 18. Having said so, we are of the considered view that the writ petitioners have alternative efficacious remedy available and these writ petitions are not maintainable. Accordingly, the same merit to be dismissed in limine. However, it is made clear that the observations made herein shall not cause any prejudice to the petitioners in case they intend to file appeal(s) before the prescribed Authority and the period spent by the petitioners for prosecuting these writ petitions shall be excluded by the Appellate Authority while computing the period of limitation. 12. The judgement in M/s Indian Technomac Company Ltd. case (supra), has attained finality, inas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a). 14. Thereafter the Hon ble Supreme Court further took into consideration the provisions of Article 141 of the Constitution of India and held as follows:- 35. .Article 141. Law declared by Supreme Court to be binding on all courts.-The law declared by the Supreme Court shall be binding on all courts within the territory of India. 36. In Executive Engineer, Southern Electricity Supply Company of Orissa Limited(SOUTHCO) this Court observed that it should only be for the specialized tribunal or the appellate authorities to examine the merits of assessment or even the factual matrix of the case. In Chhabil Dass Agrawal this Court held that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. In Cicily Kallarackal this Court issued a direction of caution that it will not be a proper exercise of the jurisdiction by the High Court to entertain a writ petition against such orders against which statutory appeal lies before this Court. In view of Article 141(1) the law as laid down by this Court, as referred above, is binding on all courts of India including the High Courts. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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