9911796707
TMI Blog2014 (8) TMI 1205X X X X Extracts X X X X X X X X Extracts X X X X ..... as 'the HP VAT Act 2005' and 'the CST Act', respectively, for short), calling upon the petitioners-Company to deposit the amounts specified in the notices, on the grounds taken in the writ petitions. 2. These writ petitions came up before the Court for the first time on 9 July, 2014 and were fixed for 23rd July, 2014, as requested by the learned counsel for the petitioners. The learned counsel for the petitioners was asked to justify the maintainability of the writ petitions since the petitioners have alternative efficacious remedy available to them in terms of Chapter-VI of the HP VAT Act, 2005, which envisages the mechanism of appeal and revision against the order of the Assessing Authority. 3. The learned Senior Counsel appearing for the petitioners frankly conceded that, no doubt, in the HP VAT Act, 2005, there is a provision for appeal against the orders passed by the Assessing Authority, however, he submitted that the notices, impugned in the present writ petitions, have been issued by the Assessing Authority without affording an opportunity of hearing to the petitioners and, therefore, the petitioners have been condemned unheard. Thus, it was submitted that the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 005, the Assessing Authority is vested with the authority to pass orders and against such orders, provision of appeal is envisaged, and the orders passed in the appeal, are further appealable to the Tribunal. Section 48 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) The State Government may, by notification, confer on any officer powers of the Commissioner under sub-section (1) to be exercised subject to such conditions and in respect of such areas as may be specified in the notification 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner-cum-Assessing Authority. Therefore, remedy of appeal is available to the petitioners as per Section 45 of the HP VAT Act, 2005. 11. Now, the question which arises for determination is - when an Act provides mechanism 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 v. 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 pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e determination of the assessable value of the commodity in question for the purpose of the levy of duty under the Act, in our opinion, the assessee ought to have carried the matter by way of an appeal before this Court 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 v. Cellular Operators Association of India, (2011) 14 SCC 337, after discussing its various earlier decisions, held that the High Court had com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 1959 SC 422; Municipal Council, Khurai v. Kamal Kumar, (1965) 2 SCR 653; Siliguri Municipality v. Amalendu Das, (1984) 2 SCC 436; S.T Muthusami v. K. Natarajan, (1988) 1 SCC 572; Rajasthan SRTC v. Krishna Kant, (1995) 5 SCC 75; Kerala SEB v. Kurien E. Kalathil, (2000) 6 SCC 293; A. Venkatasubbiah Naidu v. S. Chellappan, (2000) 7 SCC 695; L.L Sudhakar Reddy v. State of A.P, (2001) 6 SCC 634; Shri Sant Sadguru Janardan Swami (Moingiri Maharaj); Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra, (2001) 8 SCC 509; Pratap Singh v. State of Haryana, (2002) 7 SCC 484 and GKN Driveshafts (India) Ltd. v. ITO, (2003) 1 SCC 72). 13. In Nivedita Sharma v. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e jurisdiction of the High Court under Article 226-or for that matter, the jurisdiction of this Court under Article 32-is concerned, 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.'" (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 v. Guwahati Carbon Ltd., (2012) 11 SCC 651, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court has noticed that if an appeal is from "Caesar to Caesar's wife" the existence of alternative remedy would be a mirage and an exercise in futility. 17. In the instant 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 v. Guwahati Carbon Limited, Nivedita Sharma v. Cellular Operators Association of India and Commissioner of Income Tax v. Chhabil Dass Agarwal, referred to hereinabove. 16. The sum and substance of the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
