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TMI Blog2015 (6) TMI 1155X X X X Extracts X X X X X X X X Extracts X X X X ..... t by respondent No. 3, which seeks to revise the assessment order dated 16.11.2012 for the year 2011-2012 on the ground that the assessment order is not legal and proper as the same needs to be revised on the grounds that tax on sale of battery charger was levied at 5% whereas the same should have been levied at 13.75% in view of the judgement of Hon'ble Supreme Court in State of Punjab vs. Nokia India Pvt. Ltd. AIR 2015 SC 1068. 2. The case initially came up before this court on 5.3.2015, on which date the learned counsel for the petitioner was asked to address arguments on the issue of maintainability of the writ petition and the matter was ordered to be listed on 10.3.2015. On 10.3.2015, the petitioner sought adjournment to lay motion for amendment of the writ petition and the case was ordered to be listed on 1.4.2015. On 1.4.2015 notice on the application for amendment was issued and the respondents prayed one week's time to file reply to the application. Thereafter, the matter was ordered to be listed from time to time to consider the application for amendment. By way of amendment, the petitioner has sought to lay challenge to the order passed by respondent No.3 on 3.3.2015 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t judgement of the Hon'ble Supreme Court in Nokia's case (supra) cannot be used to change the course of past assessment. 5. On the other hand, the learned Advocate General has strenuously argued that the writ petition is not maintainable since the alternative and efficacious remedy by way of statutory appeal is available to the petitioner under section 45 of the H.P. VAT Act, 2005. He further submits that the writ petition has been filed just to avoid the deposit of tax, which is a pre-condition for the maintainability of the appeal under section 45 (5) of the H.P. VAT Act, 2005. He therefore, prayed for dismissal of the writ petition at the threshold. We have heard the learned counsel for the parties and have gone through the records of the case. 6. It is not in dispute that respondents No. 3 and 4 are authorities constituted under the H.P. VAT Act, 2005, and therefore, even if it is assumed that there is an illegal or irregular exercise of jurisdiction the same would not result in the order being without jurisdiction. Even if there has been some defect in the procedure followed during the hearing of the case, it does not follow that the authority has acted without jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning as per its decision. In Gian Devi Anand's case (supra) the interpretation given by the Delhi High Court that commercial tenancies were not heritable was overruled being erroneous. Interpretation given by the Delhi High Court was not legal. The interpretation given by this Court declaring that the commercial tenancies heritable would be the law as it stood from the beginning as per the interpretation put by this Court. It would be deemed that the law was never otherwise." 10. Similarly in Assistant Commissioner, Income Tax, Rajkot vs. Saurashtra Kutch Stock Exchange Limited (2008) 14 SCC 171, the Hon'ble Supreme Court has held as follows:- "35. In our judgment, it is also well- settled that a judicial decision acts retrospectively. According to Blackstonian theory, it is not the function of the Court to pronounce a `new rule' but to maintain and expound the `old one'. In other words, Judges do not make law, they only discover or find the correct law. The law has always been the same. If a subsequent decision alters the earlier one, it (the later decision) does not make new law. It only discovers the correct principle of law which has to be applied retrospectively. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of the HP VAT Act, 2005 further provides that the order of the Tribunal can be assailed by way of revision before the High Court. 8. We deem it proper to reproduce Sections 45, 46 and 48 of the HP VAT Act, 2005 here under: "45. Appeal. - (1) An appeal from every original order passed under this Act or rules made thereunder shall lie- (a) 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, to the Deputy Excise and Taxation Commissioner; (b) if the order is made by the Deputy Excise and Taxation Commissioner, to the Commissioner or the Additional Excise and Taxation Commissioner, posted at the State Headquarters; (c) 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, to the Tribunal. (2) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication and such officer shall be deemed to be the Commissioner for the purposes of sub-section (1). (3) The tribunal, on application made to it against an order of the Commissioner under this section within sixty days from the date of the communication of the order, for the purpose of satisfying itself as to the legality or propriety of such order, may call for and examine the record of any such case and may pass such orders thereon as it thinks just and proper. (4) No order shall be passed under this section, which adversely affects any person unless such person has been given a reasonable opportunity of being heard. xxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxx 48. Revision to High Court. - (1) Any person aggrieved by an order made by the tribunal under sub-section (2) of section 45 or under sub-section (3) of section 46, may, within 90 days of the communication of such order, apply to the High Court of Himachal Pradesh for revision of such order if it involves any question of law arising out of erroneous decision of law or failure to decide a question of law. (2) The application for revision under sub-section (1) shall precisely state the question of law involved in the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anism to have remedy(ies), can a writ lie in the given circumstances? The answer is in the negative for the following reasons. It is well settled principle of law that High Courts have imposed rule of self limitation in entertaining the writ petition in terms of writ jurisdiction when alternative remedy is available. High Court must not interfere if there is adequate efficacious alternative remedy available and the practice of approaching the High Court, without availing the remedy(ies) provided, must be deprecated, unless express case is made out. 12. The Apex Court in Union of India and another vs. Guwahati Carbon Limited, (2012) 11 SCC 651, while dealing with the similar question, has observed in paragraphs 8, 9, 10, 11, 14 and 15 as under: "8. Before we discuss the correctness of the impugned order, we intend to remind ourselves the observations made by this Court in Munshi Ram v. Municipal Committee, Chheharta, AIR 1979 SC 1250. In the said decision, this Court was pleased to observe that: (SCC p.88, para 23) "23. ....... when a revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under Section 35L of the Central Excise Act, 1944. 15. In our opinion, the assessee ought not to have filed a writ petition before the High Court questioning the correctness or otherwise of the orders passed by the Tribunal. The Excise Law is a complete code in order to seek redress in excise matters and hence may not be appropriate for the writ court to entertain a petition under Article 226 of the Constitution. Therefore, the learned Single Judge was justified in observing that since the assessee has a remedy in the form of a right of appeal under the statute, that remedy must be exhausted first. The order passed by the learned Single Judge, in our opinion, ought not to have been interfered with by the Division Bench of the High Court in the appeal filed by the respondent/assessee." 13. The Apex Court in Nivedita Sharma vs. Cellular Operators Association of India and others, (2011) 14 SCC 337, after discussing its various earlier decisions, held that the High Court had committed error in entertaining the writ petition without noticing and referring to the relevant provisions of law applicable in that case, which contained statutory remedy of appeal and accordingly set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RTC vs. Krishna Kant, (1995) 5 SCC 75; Kerala SEB vs. Kurien E. Kalathil, (2000) 6 SCC 293; A. Venkatasubbiah Naidu vs. S. Chellappan, (2000) 7 SCC 695; L.L. Sudhakar Reddy vs. State of A.P., (2001) 6 SCC 634; Shri Sant Sadguru Janardan Swami (Moingiri Maharaj); Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra, (2001) 8 SCC 509; Pratap Singh vs. State of Haryana, (2002) 7 SCC 484 and GKN Driveshafts (India) Ltd. vs. ITO, (2003) 1 SCC 72). 13. In Nivedita Sharma vs. Cellular Operators Assn. of India, (2011) 14 SCC 337, this Court has held that where hierarchy of appeals is provided by the statute, the party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and observed as follows: (SCC pp.343- 45 paras 12-14) "12. In Thansingh Nathmal v. Supdt. of Taxes, AIR 1964 SC 1419 this Court adverted to the rule of self-imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: (AIR p. 1423, para 7). '7. ... The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assumin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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.'" (See: G. Veerappa Pillai v. Raman & Raman Ltd., AIR 1952 SC 192; CCE v. Dunlop India Ltd., (1985) 1 SCC 260; Ramendra Kishore Biswas v. State of Tripura, (1999) 1 SCC 472; Shivgonda Anna Patil v. State of Maharashtra, (1999) 3 SCC 5; C.A. Abraham v. ITO, (1961) 2 SCR 765; Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433; H.B. Gandhi v. Gopi Nath and Sons, 1992 Supp (2) SCC 312; Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1; Tin Plate Co. of India Ltd. v. State of Bihar, (1998) 8 SCC 272; Sheela Devi v. Jaspal Singh, (1999) 1 SCC 209 and Punjab National Bank v. O.C. Krishnan, (2001) 6 SCC 569) 14. In Union of India vs. Guwahati Carbon Ltd., (2012) 11 SCC 651, this Court has reiterated the aforesaid principle and observed: (SCC p.653, para 8) "8. Before we discuss the correctness of the impugned order, we intend to remind ours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant case, neither has the writ petitioner assessee described the available alternate remedy under the Act as ineffectual and non-efficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of instant case. In light of the same, we are of the considered opinion that the Writ Court ought not to have entertained the Writ Petition filed by the assessee, wherein he has only questioned the correctness or otherwise of the notices issued under Section 148 of the Act, the re-assessment orders passed and the consequential demand notices issued thereon." 15. The decisions referred to by the learned counsel for the petitioners have been discussed by the Apex Court in the decisions of Union of India and another vs. Guwahati Carbon Limited, Nivedita Sharma vs. Cellular Operators Association of India and others and Commissioner of Income Tax and others vs. Chhabil Dass Agarwal, referred to hereinabove. 16. The sum and substance of the above discussion is that the writ petitioners-Company have remedies of appeal(s), before approaching the High Court by way of the writ petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court was confronted with the similar proposition regarding maintainability of writ petition when alternative remedy was available to the aggrieved party under the Armed Forces Tribunal Act and the Hon'ble Supreme Court after making a reference to the judgements as cited in M/s Indian Technomac Company Ltd. case (supra) and in addition thereto after taking into consideration the judgement rendered by it in Kanaiyalal Lalchand and Sachdev and others vs. State of Maharasthra and others (2011) 2 SCC 782, Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) and another vs. Sri Seetaram Rice Mill (2012) 2 SCC 108, Cicily Kallarackal vs. Vehicle Factory 2012 (8) SCC 524 and Union of India vs. Brigadier P.S. Gill (2012) 4 SCC 463 culled out the following principles: "34. ....(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 Armed Forces Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India.(Refer: L. Chandra (AIR 1997 SC 1125) and S.N. Mukherjee) (AIR 1990 SC 1984). (ii) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eposit the tax liability alongwith interest payable as assessed and penalty, if any imposed in terms of section 45(5) of the H.P. VAT Act, 2005, which clearly provides that no appeal would be entertained unless it is accompanied by a statutory proof of the payment of tax including interest payable alongwith penalty, if any subject to the exception provided by proviso to sub-section (5) of section 45 of H.P. VAT Act, 2005. 17. Having said so, we are of the considered view that 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. Accordingly, the same is dismissed in limine. However, it is made clear that the observations made hereinabove shall not cause any prejudice to the petitioner in case it intends to file an appeal(s) before the prescribed authority and the period spent by the petitioner for prosecuting this petition shall be excluded by the appellate authority while computing the period of limitation. 18. In view of the aforesaid discussion, the writ petition is dismissed in limine alongwith all pending application(s), if any. The parties ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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