2008 (4) TMI 682 - HC - VAT and Sales Tax

Limitation period - revised assessment - alternate remedy - Held that - Limitation period commences from the date of final assessment order. The said provision came into effect prospectively and not retrospectively. There is nothing in the amendment made to section 16(1)(a) that the same was intended to operate retrospectively. There is no dispute regarding the same. Therefore the amended provision is not relevant. There is also no dispute that the revision of assessment is barred by limitation as early as on March 31, 2001, which is much before the introduction of amended provision of section 16(1)(a) by Amendment Act of 22 of 2002, which came into effect from July 1, 2002. Coming to the next contention regarding alternative remedy, the appellant has established the revision of assessment made under section 16(1)(a) of the Act is statutorily barred by limitation and therefore, it is a fit case for the interference under article 226 of the Constitution of India. Further we are also of the view that the revised assessment made by the respondent is illegal, wrong, without basis and justification. Thus the revised assessment passed by the appellant is statutorily barred by limitation under section 16(1)(a) of the TNGST Act. Set aside the order of the learned single judge and the writ appeal is allowed.

Summary

Issues:
1. Revision of assessment for the assessment year 1995-96 being statutorily barred by limitation.
2. Availability of alternative remedy under the statute.
3. Jurisdiction of the High Court to exercise writ jurisdiction when an alternative remedy is available.

Issue 1: Revision of assessment for the assessment year 1995-96 being statutorily barred by limitation:
The appellant challenged the revised assessment for the assessment year 1995-96, contending that it was barred by limitation. The assessing officer issued a pre-revision notice on April 14, 2004, after the expiry of five years from the relevant year. The revised assessment order was passed on June 1, 2004, which was beyond the statutory limitation period. The court analyzed Section 16(1)(a) of the TNGST Act, which allows revision of assessment within five years from the expiry of the relevant year. The court found that the notice and assessment were indeed beyond the prescribed limitation, rendering them invalid.

Issue 2: Availability of alternative remedy under the statute:
The respondent argued that the appellant had an alternative remedy available under the statute and should have exhausted it before approaching the court. However, the appellant contended that the revision of assessment was barred by limitation, making it a fit case for the High Court's interference under Article 226 of the Constitution of India. The court agreed with the appellant's argument, emphasizing that when an order lacks jurisdiction or is statutorily barred by limitation, the High Court can intervene even if an alternative remedy exists.

Issue 3: Jurisdiction of the High Court to exercise writ jurisdiction when an alternative remedy is available:
The court examined the jurisdiction of the High Court to entertain writ petitions when an alternative remedy is available under the statute. It noted that under Article 226 of the Constitution of India, the High Court should generally not exercise writ jurisdiction if an alternative remedy exists, except in cases of lack of jurisdiction or statutory limitation. In this case, since the revision of assessment was found to be statutorily barred by limitation, the court deemed it appropriate to exercise its writ jurisdiction.

In conclusion, the court set aside the order of the learned single judge, allowing the writ appeal and closing the case without costs. The judgment highlighted the importance of adhering to statutory limitations in assessment proceedings and the circumstances under which the High Court can intervene despite the availability of alternative remedies.