TMI Blog2020 (8) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute must only be availed of. Reliance placed upon the decision of the Supreme Court in the case of TITAGHUR PAPER MILLS CO. LIMITED. AND ANOTHER VERSUS STATE OF ORISSA AND ANOTHER [ 1983 (4) TMI 49 - SUPREME COURT] , wherein it is observed 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 must only be availed of. As in the instance case, the GVAT Act, 2003 provides complete machinery for the assessment/reassessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the authorities, in our opinion, the writ applicant should not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution, more particularly, when the writ applicant has the adequate remedy open him by an appeal to the Joint Commissioner - it is not convincing that it is not a case wherein we should entertain this writ application under Article 226 of the Constitution of India despite there being an e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from taking any further proceedings or steps in furtherance of and/or in implementation of the Orders dated 23.03.2020 for recovery of the amount; (d) for ad-interim reliefs in terms of prayer (c ) above; (e) for costs of the Petition, (f) Such other and further order or orders as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted. 2. The facts, giving rise to this litigation, may be summarized as under; 2.1 The writ applicant is engaged in providing the consulting engineer and construction services in respect of commercial or industrial building and civil structure. In the course of providing such services, the writ applicant is, inter alia, engaged in the buying and selling of goods for its products in the State of Gujarat. 2.2 The writ applicant is registered as a dealer under the GVAT Act and the Central Sales Tax Act. 2.3 The writ applicant came to be awarded two contracts by the following two project owners in the State of Gujarat, India for engineering, procurement, construction and commissioning assistance for the Liquefied Natural Gas Storage Tanks. (A) GPSC LNG Limited ( GLL -the SEZ Co- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ross violation of the principles of natural justice, this writ application, under Article 226 of the Constitution of India, may be entertained. 3.2 Mr. Shah, the learned senior counsel, in the course of the hearing of this matter, brought to our notice the findings recorded by the respondent No.4 in the impugned assessment order. According to Mr. Shah, in the impugned order of assessment, the following has been noted; 5.20 The petitioner has not submitted CA certified Trial Balance or Balance Sheet of Gujarat. 5.21 The petitioner failed to submit the proof like endorsement on invoices, dispatch of goods etc. used within SEZ. The said sales have been treated as local sales liable to @15%. 5.22 The petitioner has provided job-works services of ₹ 2,47,43,62,483/- and paid applicable service tax. However, due to non-submission of proof of labour work (services) by virtue of provisions of Rule 18(AA) of GVAT Rules, 30% will be considered as labour (services) component and balance 70% as materials. 5.23 The petitioner had made local sales of ₹ 53,00,88,982/- on which VAT is paid @ 4% and additional tax @ 1%. However, due to non-submission of sales invoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation, the same may be allowed and the impugned assessment order may be quashed and set aside. Mr. Shah prays that the matter deserves to be remitted to the respondent No.4 for fresh hearing with appropriate directions to take into consideration the documentary evidence and the case laws. 4. Submissions on behalf of the respondents; 4.1 On the other hand, this writ application has been vehemently opposed by Ms. Shah, the learned Government Pleader appearing for the State-respondents. Ms. Shah has raised a preliminary objection with regard to the maintainability of this writ application on the ground that the writ applicant has an alternative efficacious remedy of preferring an appeal before the Appellate Authority. In such circumstances, according to Ms. Shah, this writ application may not be entertained and the writ applicant may be relegated to avail the alternative remedy of preferring an appeal. 4.2 Ms. Shah would submit that there is no merit worth the name in the vociferous submission canvassed on behalf of the writ applicant that the impugned order of assessment is contrary to law or has been passed in gross violation of the principles of natural justice. Ms. Shah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be entertained by an appellate authority, unless such appeal is accompanied by satisfactory proof of payment of the tax in respect of which an appeal has been preferred: Provided that an appellate authority may, if it thinks fit, for reasons to be recorded in writing, entertain an appeal against such order- (a) Without payment of tax with penalty (if any) or, as the case may be, of the penalty, or (b) On proof of payment of such smaller sum as it may consider reasonable, or (c) On the appellant furnishing in the prescribed manner, security for such amount as the appellate authority may direct. (5) The commissioner, on receipt of notice that an appeal against the order passed in appeal by the Deputy Commissioner or, as the case may be, by the Joint Commissioner has been preferred by the other party to the Tribunal may, within thirty days of receipt of the notice, file a memorandum of cross objection against any part of the order passed in appeal by the Deputy Commissioner or, as the case may be, by the Joint Commissioner and such memorandum shall be disposed of by the Tribunal as if it were an appeal. (6) Subject to such rules of procedure as may be pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial question of law involved in the appeal. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard on the question so formulated and the respondent shall, in the hearing of the appeal, be allowed to argue that the case does not involve such question : Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. (5) The High Court, upon hearing of such case, shall decide the question so formulated or involved and deliver the judgement thereon containing the grounds on which such decision is founded. (6) An appeal under this section may be filed within ninety days from the date of communication of the order of the Tribunal and shall be accompanied with a fee of rupees two hundred. (7) In respect of such matters not provided in this section, the provisions of Code of Civil Procedure, 1908, which applies to the second appeal to High Court und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 336, 356] in the following passage: There are three classes of cases in which a liability may be established founded upon 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 Co. Ltd. (1935 AC 532) and Secretary of State v. Mask 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int and not entertain the writ petition, if an alternative effective remedy is available to the aggrieved person. In paragraph 7, the Court observed thus: 7. Against the order of the Commissioner an order for reference could have been claimed if the appellants satisfied the Commissioner or the High Court that a question of law arose out of the order. But the procedure provided by the Act to invoke the jurisdiction of the High Court was bypassed, the appellants moved the High Court challenging the competence of the Provincial Legislature to extend the concept of sale, and invoked the extraordinary jurisdiction of the High Court under Article 226 and sought to reopen the decision of the Taxing Authorities on question of fact. The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1958 SC 86; Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433; Harbanslal Sahnia vs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107; State of H.P. vs. Gujarat Ambuja Cement Ltd ., (2005) 6 SCC 499). 16. 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, Kotah, 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 a very wide powers in the matter of issuing writs on the High Court, the remedy of writ 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 principles of natural justice or procedure required for decision has not been adopted. (See: N.T. Veluswami Thevar vs. G. Raja Nainar, AIR 1959 SC 422; Municipal Council, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case 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. 14. The aforesaid observations of the Supreme Court, as contained in Para-19 definitely fortifies the submission of Mr. Shah, the learned Senior Counsel that if 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, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the High Court may not decline to entertain the writ application under Article 226 of the Constitution of India ..... X X X X Extracts X X X X X X X X Extracts X X X X
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