TMI Blog2017 (3) TMI 1939X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned notices or the orders of assessment, rather, it can be challenged by way of appeal. The limitation to prefer appeal has already expired thus it would be appropriate to give liberty to the petitioners to prefer an appeal against the order of assessment within a period of 60 (sixty) days from the date of pronouncement of this judgment and, in that case, issue of limitation would not come in their way, as agreed by learned counsel for the respondents. The direction aforesaid has been given on an agreement of learned counsel for the respondents as otherwise the period of limitation to maintain appeal is of 60 days from the date of assessment order. All these writ petitions are dismissed. - S.B. Civil Writ Petition Nos. 18688, 18689, 18690/2015, S.B. Civil Misc. Writ Petition Nos. 8304/2016, S.B. Civil Writ Petition Nos. 5860, 5862, 5863, 9204/2015, S.B. Civil Misc. Writ Petition Nos. 10401, 10402, 10403/2015, S.B. Civil Writ Petition Nos. 3404, 3405, 3406, 3407, 5861/2015 and S.B. Civil Misc. Writ Petition No. 10400/2015 Hon'ble Judges M.N. Bhandari, J. For the Appellant : Tarun Gulati, Shashi Mathews, Ankit Sachdeva, Abhishek Anand, Sameer Jain, Mahi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w, impugned notices have been issued in reference to the judgment of the Apex Court in the case of Nokia India Private Limited (supra). The judgment in the said case was given with consent of the parties and thus should not have been applied for a notice under Sections 25 or 26 of the Act of 2003. 5. It is further stated that the judgment of the Apex Court cannot be made basis for issuance of notice for reassessment. The assessment orders were earlier passed by charging VAT on the composite pack. It was in accordance to the judgment of the Punjab and Haryana High Court in the case of Nokia India Private Limited, though, it was reversed by the Apex Court later on. Therein, it was held that battery chargers cannot be considered to be part of the mobile phone but subsequent judgment of the Apex Court in the case of Nokia India Private Limited (supra) could have been taken as basis for notices under Sections 25 or 26 of the Act of 2003. 6. The notices under Sections 25 or 26 of the Act of 2003 are not only for battery chargers but for the battery, laptop charger, laptop battery, tablets and data cables also, though, the issue decided in the case of Nokia India Private Limited (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able. The notices deserve to be set aside so as the order of assessment subsequently passed in few cases in absence of an interim order and, in few writ petitions, it was challenged as the assessment orders were passed prior to filing of writ petitions. 10. Learned counsel for petitioners submitted that in the case of DCIT v. Simplex Concrete Piles (India) Limited reported in 2013(11) SCC 373, it was held that subsequent reversal of a judgment by the Apex Court does not authorise the department to reopen assessment, which stood closed on the basis of law, as it stood at the relevant time. In the light of the aforesaid, the judgment of the Apex Court in the case of Nokia India Private Limited (supra) could not have been used for issuance of impugned notices and orders. Similar view was taken by the Apex Court in the case of MEPCO Industries v. CIT reported in 2010 (1) SCC 434 in many other cases. 11. Learned counsel for the petitioners have even placed reliance on the judgment of Patna and Allahabad High Court in the case of Samsung India Electronics Pvt. Ltd. Ors. v. State of Bihar reported in 2016-TIOL-3079-HC-Patna-VAT and Samsung India Electronics Private Limited v. Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of Whirlpool Corporation v. Registrar, Trademarks reported in 1998(8) SCC 1. 15. Learned counsel for the respondents has opposed the writ petitions. It is submitted that after notices under Sections 25 or 26 read with Sections 55 and 61 of the Act of 2003, an order of assessment has been passed. All the issues raised by the petitioners have been dealt with by the Assessing Authority. In view of above, present writ petitions are not maintainable as the petitioners are having efficacious alternative remedy of appeal under the Act of 2003. In few writ petitions, order of assessment was passed subsequently and has been challenged by amending the writ petition/s when notice under Sections 25 or 26 of the Act of 2003 was not stayed by this Court. In view of the aforesaid, assessment order has been passed in all the cases. It is also a fact that in many writ petitions, notice was challenged after the order of assessment. The petitioners had taken all the issues before the Assessing Authority which have been decided. In view of the aforesaid, it is not that writ petitions were filed at the stage of notice but even subsequent to the assessment order also but without availin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from challenge to the notice under Sections 25 or 26 of the Act of 2003, the petitioners have even challenged assessment orders on various grounds, which includes valuation of charger and imposition of interest and penalty. The issue aforesaid cannot be determined by this Court being factual in nature. The valuation of charger needs finding of fact thus for all these reasons, writ petitions deserve to be dismissed with a liberty to the petitioners to avail remedy of appeal though the period for filing appeal has already expired but then this Court can give liberty for maintaining appeal in the given circumstances. 20. I have considered rival submissions made by learned counsel for the parties and scanned the matter carefully. 21. The bunch of writ petitions involves common question of law. It is, however, a fact that few petitions were filed at the stage of notices under Sections 25 or 26 of the Act of 2003, whereas, other petitions were filed after order of assessment pursuant to the notice under challenge. 22. It is stated by learned counsel for respondents that in all the cases, assessment orders have already been passed thus as on date, notice under Sections 25 or 26 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Private Limited (supra) would not be applicable. The judgment aforesaid shows nothing but literally review of the judgment of the Apex Court in the case of Nokia India Private Limited (supra). The High Court cannot sit as a court of appeal or to review the judgment of the Supreme Court thus I am unable to accept the judgment of the Allahabad High Court referred by learned counsel for the petitioners. 25. The other judgment referred by learned counsel for the petitioners is in the case of Samsung India Electronics Pvt. Ltd. Ors. v. State of Bihar (supra). The judgment aforesaid was given in reference to Section 31 of the Bihar Value Added Tax Act, 2005 (for short the Act of 2005 ). It is not similar to the provisions of Sections 25 and 26 of the Act of 2003 and otherwise, reliance was mainly placed on the judgments in reference to Section 147 of the Act of 1961. The Patna High Court even applied the judgment in the case of Simplex Concrete Piles (supra), though, it is not a case of reversal of judgment by the Apex Court after the judgment of jurisdictional High Court but it is a case where jurisdictional High Court has not decided the issue prior to the judgment in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out that even if we assume that there was some defect in the procedure folld. at the trial, it does not follow that the trial Ct. acted without jurisdiction. There is a basic difference between want of jurisdiction an illegal or irregular exercise of jurisdiction, our attention has not been drawn to any authority in which mere non-compliance with the rules of procedure has been made a ground for granting one of the write prayed for. In either case, the 'defect, if any, can according to the procedure established by law be corrected only by a Ct. of appeal or revision. Here, the appellate Ct. which was competent to deal with the matter has pronounced its judgment against the petitioners. the manner having been finally decided is not one to be reopened in a proceeding under Art. 32 of the Constitution. 8. Now in so far as the contention of the petitioner that a subsequent judgment i.e. Nokia's case (supra) cannot be used to change the course of past assessment is concerned, it is more than settled that the judgments of the courts declare the law as it was always. Though the courts some time order that the judgments would have prospective effect, but in absence of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the meantime . (emphasis supplied) 11. In so far as the maintainability of the writ petition is concerned, the facts herein are similar to the ones in M/s. Indian Technomac Company Ltd. case (supra), wherein this court was confronted with the proposition regarding the maintainability of the petition when an alternative remedy existed under the H.P. VAT Act, 2005 and this court held as follows:-- 6. Before we deal with the question of maintainability of the writ petitions, we deem it proper to make a brief reference to the averments contained in the leading writ petition, (CWP No. 4779 of 2014), which are, by and large, similar in the other writ petitions. It is averred in the writ petition that the Assessing Authority has not heard the petitioners before making the impugned orders, and thus, have been passed without providing sufficient opportunity of being heard to the writ petitioners. It is also pleaded that the impugned orders have been passed in a biased manner, under the dictation of high officials. It is further pleaded that the impugned orders have been passed without jurisdiction, though, during the course of hearing, as discussed hereinabove, no such argument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority may allow, for reasons to be recorded in writing. (5) No appeal under sub-section (1) shall be entertained by an Appellate Authority unless such appeal is accompanied by satisfactory proof of the payment of the tax (including interest payable) or of the penalty, if any, imposed or both as the case may be: Provided that if such Authority is satisfied that the dealer is unable to pay the tax (including interest payable) assessed or the penalty, if any, imposed or both, he may, for reasons to be recorded in writing, entertain an appeal without the tax (including interest payable) or penalty or both having been paid in full or after part payment of such tax (including interest payable) or penalty or both. (6) Subject to such rules of procedure as may be prescribed, an Appellate Authority may pass such order on appeal as it deems just and proper. 46. Revision.- (1) The Commissioner may, of his own motion, call for the record of any proceedings which are pending before, or have been disposed of by, any Authority subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such proceedings or order made therein and, on finding the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench consisting of not less than two judges. (5) 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. 9. Provision of sub section (1) of Section 45 of the HP VAT Act, 2005 clearly provides that 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, the appeal against such order shall lie to the Deputy Excise and Taxation Commissioner; if the order is made by the Deputy Excise and Taxation Commissioner, the same can be appealed before the Commissioner or the Additional Excise and Taxation Commissioner, posted at the State Headquarters; and 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, the same is appealable before the Tribunal. Sub Section (2) of Section 45 of the HP VAT Act, 2005 further provides that an order passed in appeal by a Deputy Excise and Taxation Commissioner or by the Additional Excise and Taxation Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statute must be availed.... 10. In other words, existence of an adequate alternate remedy is a factor to be considered by the writ court before exercising its writ jurisdiction (See Rashid Ahmed v. Municipal Board, Kairana, : 1950 SCR 566). 11. In Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1, this Court held: 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of the Fundamental Rights or where there has been a violation of the principle of natural justices or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged...... xxxxxxxxxxxxxxxxxxxxxxxx 14. Having said so, we have gone through the orders passed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1986 Act and the law laid down in various judgments of this Court and yet it has declared that the directions given by the State Commission are without jurisdiction and that too by overlooking the availability of statutory remedy of appeal to the respondents. 14. The Apex Court in a recent decision in Commissioner of Income Tax and others v. Chhabil Dass Agarwal, (2014) 1 SCC 603, has discussed the law, on the subject, right from the year 1859 till the date of judgment i.e. 8th August, 2013. We deem it proper to reproduce paragraphs 12, 13, 15, 16 and 17 hereunder: 12. The Constitution Benches of this Court in K.S. Rashid and Sons v. Income Tax Investigation Commission, AIR 1954 SC 207; Sangram Singh v. Election Tribunal, : AIR 1955 SC 425; Union of India v. T.R. Varma, AIR 1957 SC 882; State of U.P. v. Mohd. Nooh, AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras, : AIR 1966 SC 1089, have held that though Article 226 confers very wide powers in the matter of issuing writs on the High Court, the remedy of writ is absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford, 141 ER 486 in the following passage: (ER p. 495) ... There are three classes of cases in which a liability may be established founded upon a 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 and Co. Ltd., 1935 AC 532 (PC) and Secy. of State v. Mask and Co., AIR 1940 PC 105. It has also been held to be equally applicable to enforc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 proposition laid down in Thansingh Nathmal case : AIR 1964 SC 1419, Titagarh Paper Mills case 1983 SCC (Tax) 131 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. 16. In the instant case, the Act provides complete machinery for the assessment/re-assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised in these writ petitions relates to revenue/tax matters, it can safely be concluded that the petitioners have sufficient efficacious remedy(ies) available. 17. It also appears that these writ petitions are aimed at to give a slip to law for the reason that the petitioners have to deposit the tax liability, alongwith interest payable, as assessed, and penalty, if any, imposed, in terms of Section 45(5) of HP VAT Act, 2005, referred to above, which provides that no appeal has to be entertained unless it is accompanied by satisfactory proof of the payment of tax including interest payable alongwith penalty, if any, imposed, subject to exception provided by proviso to sub section (5) of Section 45 of the HP VAT Act, 2005. 18. Having said so, we are of the considered view that the writ petitioners have alternative efficacious remedy available and these writ petitions are not maintainable. Accordingly, the same merit to be dismissed in limine. However, it is made clear that the observations made herein shall not cause any prejudice to the petitioners in case they intend to file appeal(s) before the prescribed Authority and the period spent by the petitioners for prosecuting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (Refer: Nivedita Sharma). 14. Thereafter the Hon'ble Supreme Court further took into consideration the provisions of Article 141 of the Constitution of India and held as follows:-- 35.....Article 141. Law declared by Supreme Court to be binding on all courts.-The law declared by the Supreme Court shall be binding on all courts within the territory of India. 36. In Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) this Court observed that it should only be for the specialized tribunal or the appellate authorities to examine the merits of assessment or even the factual matrix of the case. In Chhabil Dass Agrawal this Court held that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. In Cicily Kallarackal this Court issued a direction of caution that it will not be a proper exercise of the jurisdiction by the High Court to entertain a writ pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the orders of assessment, rather, it can be challenged by way of appeal. The limitation to prefer appeal has already expired thus it would be appropriate to give liberty to the petitioners to prefer an appeal against the order of assessment within a period of 60 (sixty) days from the date of pronouncement of this judgment and, in that case, issue of limitation would not come in their way, as agreed by learned counsel for the respondents. Learned counsel for the respondents submitted that entire due amount of tax and interest has been paid by the petitioners thus condition of payment of due amount to maintain appeal get satisfied, as amount of penalty has not been enforced during pendency of the writ petitions, despite no interim order. 29. The direction aforesaid has been given on an agreement of learned counsel for the respondents as otherwise the period of limitation to maintain appeal is of 60 days from the date of assessment order. It is further made clear that in case of appeal, the Appellate Authority would consider and decide all the issues and the judgment in hand would not cause any pre judice to either of the parties. 30. In view of the direction/observation made ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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