TMI Blog2022 (6) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... while calculating the period of limitation for the same. Petition disposed off. - OWP No. 81/2018 IA No. 01/2018 - - - Dated:- 3-6-2022 - Hon ble Mr. Justice Ali Mohammad Magrey And Hon ble Mr. Justice Wasim Sadiq Nargal For the Appellant : Z.A. Qureshi, Senior Advocate and Rehana Fayaz, Advocate For the Respondents : D.C. Raina, Advocate General and Sajad Ashraf, GA JUDGMENT Magrey, J. 1. The present writ petition has been filed by the petitioner impugning the order dated 7th December 2017 passed by the J K State Sales Tax (Appellate) Tribunal (for short the 'Tribunal'). 2. The writ petition does not contain any question(s) of law, sought to be raised by the petitioner in the writ petition. 3. At the very outset, Mr. D.C. Raina, learned Advocate General raised a preliminary objection regarding maintainability of the writ petition. He submitted that against the order passed by the Tribunal, the petitioner had remedy of filing an application before the Tribunal seeking reference of question(s) of law, arising out of the order passed by the Tribunal, to this Court and in case the aforesaid application is not allowed, the remedy is before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay tax or penalty or interest or to forfeiture or any sum or which effects the recovery from any person of any amount under Section 12-A that person or the Commissioner, Sales Tax having jurisdiction over the whole of the State may by application in writing (accompanied where the application is made by that person by a fee of five hundred rupees) require the Tribunal to refer to the High Court any question of law arising out of such order and where the Tribunal agrees, it shall as soon as may be not later than ninety days from the receipt of such application draw up a statement of the case and refer it to the High Court: Provided that the Tribunal may, if it is satisfied that the dealer or the Commissioner was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period not exceeding thirty days: Provided further that, if in exercise of its power under this sub-section, the Tribunal refuses to state the case which it has been required to do, on the ground that no question of law arises that person or the Commissioner may within ninety days of such refusal, either withdraw his appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng it opportunity of hearing, assessments for the years 2007-08 and 2008-09 were framed, vide separate orders dated 03.09.2009. Aggrieved against those orders, the respondent No. 1 preferred two appeals before the Deputy Commissioner, Commercial Taxes, Appeals (Appellate Authority), Jammu. The 1st Appellate Authority framed the following question for consideration: Whether the appellant is a service provider covered under SRO 117 dated 30.03.2007 and whether the services so rendered are taxable under J K GST Act. 11. Both the appeals filed by the respondent No. 1 were dismissed by the Ist Appellate Authority, vide common order dated 01.03.2011. 12. Still aggrieved, the respondent No. 1 preferred two appeals before the Tribunal. Vide common order dated 22.02.2012 passed by the Tribunal, both the appeals were allowed and the orders passed by the Assessing as well as Appellate Authority, were set aside. 13. The issue which is required to be considered by this Court at this stage is as to what is the remedy available to the petitioner to impugn the orders passed by the Tribunal. And further, as to whether bypassing that remedy, writ petition can be filed. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned order dated 02.07.2013 shall not be regarded as final expression of opinion on any issue referred in that order. The appellant shall be at liberty to raise all the issues including the issue with regard to the maintainability of the petition. 3 With the aforesaid observation, the appeal is dismissed. 19. A perusal of the aforesaid order shows that liberty was granted to the respondent No. 1 to raise all the issues including the issue regarding the maintainability of the writ petition. Hence, the contention raised by the learned Advocate General that writ petition having been admitted, the preliminary objection regarding maintainability of the writ petition cannot be considered at this stage is totally misconceived and deserves to be rejected. 20. To put the record straight, it is added that earlier as per Rules and circulars issue by Hon'ble Chief Justice, tax matters used to be listed before Single Judge. That is why initially the writ petition was listed before Single Bench. However, later on with changes made for listing of cases of different categories, the tax matters are listed before Division Bench only. This is how the matter has been listed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meet with the objection. 7. For the reasons mentioned above, in our view the preliminary objection raised by the learned Advocate General, has to be sustained and the writ petition deserves to be dismissed on the ground of availability of an effective alternative remedy against the order impugned in the writ petition. However, we find merit in the argument raised by Mr. Z.A. Qureshi, learned senior counsel representing the petitioner on the issue that the period spent by the petitioner before this court be excluded for the purpose of calculation of limitation for filing the appropriate application before the Tribunal. Hence, it is directed that, in case the petitioner files the application(s) before the Tribunal seeking reference of question(s) of law arising out of the order passed by the Tribunal within 3 weeks from today, the period spent by the petitioner before this court in the present proceedings, shall be excluded, while calculating the period of limitation for the same. It is made clear that we have not expressed any opinion on the merits of the questions raised in the present writ petition and the Tribunal shall proceed in the matter uninfluenced by any observations ..... X X X X Extracts X X X X X X X X Extracts X X X X
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