TMI Blog2022 (12) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner only submitted partial information and not the complete information and suppressed details of dispatch of diesel. The petitioner has relied upon several judgments not only seeking to raise issue on the merits of the case but also on the allegation of violation of law and violation of principles of natural justice. None of those judgments come to the aid of the petitioner as in view of the peculiar facts and circumstances of the present case where the petitioner was afforded as many as three opportunities of hearing, he failed to file any reply - in the absence of breach of fundamental rights; violation of principles of natural justice; excess of jurisdiction; or a challenge to the vires of the statute or delegated legislation, the writ petition would not be maintainable. We are not inclined to entertain these writ petitions and to go into correctness of the order of assessment and leave this to be dealt with by the appellate authority in the event the writ petitioner choses to avail his right of appeal as provided under Section 107 of the Act - the objection of maintainability of the writ petitions is sustained and the writ petitions are held to be not maintainabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and ever filed any reply. Further submission of learned counsel for the petitioner is that now in all the cases the respondents have acted in flagrant violation of provisions contained under Section 74 of the Act inasmuch as the mandatory requirement of giving summary of grounds in form DRC-01 was not supplied along with show cause notice and, therefore, there is apparent flagrant violation of Rule 142 of Rajasthan Goods and Service Tax Rules, 2017. He would further submit that various documents collected by the respondents, which includes survey report and statements seven in number, which formed the basis for impugned order of assessment were never submitted to the petitioner. He would further submit that as provided under Section 75(5) of the Act, he was entitled to three opportunities but those opportunities were never granted to him and all of a sudden, without any reply on record, the impugned order was passed. He would further submit that in the show cause notice it was not clearly stated as to which clause of Section 15 of the Act was applicable to create statutory liability for payment of tax, therefore, the show cause notice and the impugned order both are vague, per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y under Section 74(5) of the Act was again issued to the petitioner, which was replied to and finally show cause notice under Section 74 of the Act was issued on 06.07.2022. The petitioner only kept on seeking adjournments. On 14.07.2022, he requested adjournment which was granted. Again request for adjournment was made on 01.08.2022, which was again accepted and no adverse order was passed. On 21.09.2022, another adjournment was sought and again the authorities did not pass any order and awaited submission of reply. When ultimately no reply was filed, order was passed on 11.11.2022. Learned State counsel would submit that violation of non-issuance of summary of grounds in form DRC-01 are only technical in nature because the purpose of giving summary of grounds in form of DRC-01 is to provide an opportunity stating as to on what basis proposed demands have been made. Referring to contents of show cause notice issued on 06.07.2022, learned State counsel would emphasise that detailed notice was given to the petitioner, which contained summary of grounds on which the action was proposed and, therefore, there was substantial compliance of the provisions of requirement of giving summ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mouth of the petitioner to allege violation of principles of natural justice inasmuch as after issuing of show cause notice on 06.07.2022 as record itself speaks, the petitioner requested for adjournments on 14.07.2022, 01.08.2022 and then 21.09.2022. The petitioner did not avail the opportunity granted to him more than once. The petitioner did not ask for disclosure of any particular record, report or statement but avoided to file any reply. The argument based on right to get three adjournments as a matter of course, is based on provisions contained under Section 75(5) of the Act. The said provision provides that proper officer shall, if sufficient cause is shown by the person chargeable with tax, grant time to the said person and adjourn the hearing for reasons to be recorded in writing provided that no such adjournment shall be granted for more than three times to a person during the proceedings. We fail to understand how an argument based on right to seek adjournment could be raised on the face of provisions contained under Section 75(5) of the Act. In any case, on the peculiar facts and circumstances of the present case, we find that the petitioner was, in fact, granted thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition Under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation. 12. In the present case, none of the above exceptions was established. There was, in fact, no violation of the principles of natural justice since a notice was served on the person in charge of the conveyance. In this backdrop, it was not appropriate for the High Court to entertain a writ petition. The assessment of facts would have to be carried out by the appellate authority. As a matter of fact, the High Court has while doing this exercise proceeded on the basis of surmises. However, since we are inclined to relegate the Respondent to the pursuit of the alternate statutory remedy Under Section 107, this Court makes no observation on the merits of the case of the respondent. Thus in the absence of breach of fundamental rights; violatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions Under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged. 50. In Punjab National Bank v. O.C. Krishnan, (2001) 6 SCC 569 this Court considered the question whether a petition Under Article 227 of the Constitution was maintainable against an order passed by the Tribunal Under Section 19 of the DRT Act and observed: (SCC p. 570, paras 5-6) 5. In our opinion, the order which was passed by the Tribunal directing sale of mortgaged property was appealable Under Section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short 'the Act'). The High Court ought not to have exercised its jurisdiction Under Article 227 in view of the provision for alternative remedy contained in the Act. We do not propose to go into the correctness of the decision of the High Court and whether the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considering the validity of impugned action or inaction the Court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extraordinary jurisdiction Under Article 226 of the Constitution. 30. The Court while exercising its jurisdiction Under Article 226 is duty-bound to consider whether: (a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; (b) the petition reveals all material facts; (c) the Petitioner has any alternative or effective remedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty of unexplained delay and laches; (e) ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barred by any valid law; and host of other factors. The Court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the Court and particularly in cases where public revenue an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on against the order of assessment by-passing the statutory remedy of appeal. There are serious disputes on facts as to whether the assessment order was passed on 20.03.2020 or 14.07.2020 (as alleged by the assessee). No valid reasons have been shown by the assessee to by-pass the statutory remedy of appeal. This Court has consistently taken the view that when there is an alternate remedy available, judicial prudence demands that the court refrains from exercising its jurisdiction under constitutional provisions. 17. In view of the above and in the facts and circumstances of the case, the High Court has seriously erred in entertaining the writ petition against the assessment order. The High Court ought to have relegated the writ petitioner-assessee to avail the statutory remedy of appeal and thereafter to avail other remedies provided under the statute. In another decision, in the case of State of Madhya Pradesh and Another Versus Commercial Engineers and Body Building Company Limited, 2022 SCC ONLINE SC 1425 , relying upon its decision in State of Maharashtra and Others Versus Greatship (India) (supra) , the legal position was reiterated by the Supreme Court, it was held ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
