1992 (8) TMI 257 - HC - VAT and Sales Tax

Summary

Issues:
1. Jurisdictional challenge raised for the first time after assessment proceedings.
2. Interpretation of section 70 of the Bombay Sales Tax Act regarding transfer of proceedings.
3. Mandatory nature of the requirement of hearing before transfer under section 70.
4. Application of waiver, acquiescence, and estoppel in challenging jurisdiction.
5. Distinction between inherent lack of jurisdiction and irregular exercise of jurisdiction.
6. Comparison with relevant case laws on waiver of objection to jurisdiction.
7. Consideration of alternate remedy and maintainability of the petition.

Analysis:

1. The judgment pertains to a jurisdictional challenge raised by the Commissioner of Sales Tax after assessment proceedings were initiated under the Bombay Sales Tax Act. The challenge was based on the transfer of the case from one Sales Tax Officer to another without granting a hearing to the assessee as required under section 70 of the Act.

2. The Court analyzed the provisions of section 70, which allow the Commissioner to transfer proceedings after giving a reasonable opportunity of being heard. The key issue was the interpretation of the phrase "in the same city, locality or place" in the proviso of section 70. The Court held that the words "locality" or "place" should be read disjunctively, and no hearing is necessary before transferring a case between Sales Tax Officers in different localities within the city.

3. The Court deliberated on whether the requirement of hearing before transfer under section 70 is mandatory or directory. It concluded that the requirement is directory, and the assessment order does not become void ab initio in the absence of prejudice.

4. The judgment also discussed the principles of waiver, acquiescence, and estoppel in challenging jurisdiction. It emphasized that the assessee's conduct in not objecting to jurisdiction earlier and contesting the case on merits amounted to acquiescence, disentitling the assessee from relief based on jurisdictional objections.

5. The Court distinguished between inherent lack of jurisdiction and irregular exercise of jurisdiction, citing relevant Supreme Court decisions. It highlighted that objection to territorial jurisdiction does not necessarily invalidate the proceedings.

6. The judgment compared the present case with previous decisions on waiver of objection to jurisdiction in sales tax laws. It clarified that the principles of waiver do not apply to cases of inherent lack of jurisdiction, emphasizing the distinction between lack of territorial jurisdiction and competence of the court.

7. Lastly, the Court addressed the issue of alternate remedy and the maintainability of the petition. Despite the existence of an alternate remedy, the Court decided to allow the writ petition, considering the impact on revenue and the trend of quashing assessment orders by Tribunals.

In conclusion, the Court allowed the writ petition, quashed the Tribunal's order, and remitted the matter back for disposal on merits, emphasizing the priority in handling the case due to its age.