2009 (3) TMI 955 - HC - VAT and Sales Tax

Entitlement for tax exemption under the Industrial Policy Resolution, 1986 - Whether writ petition has been filed without exhausting the statutory remedy of appeal as provided under the Orissa Sales Tax Act, 1947? - Whether in law, this court in writ jurisdiction can pass any order in contravention of the statute and further whether this kind of order amounts to amending the legislation itself only for giving benefit to an individual person? Held that - In the instant case a special status seems to have been conferred upon the petitioner-assessee by a judicial order of this court dated September 13, 2001 in O.J.C. No. 11672 of 2001, whereby the present petitioner was granted liberty to approach this court directly, if the assessment order raised any demand against the petitioner. No reason has been noted in the order as to why the court conferred such special status on a particular assessee, as it clearly exhibits hostile discrimination to similarly situated assessees who had not-been given similar opportunity to approach this court directly against the assessment order without approaching the appellate forum provided under the statute. No cogent reason could be given by Mr. Sahoo, learned counsel for the petitioner, as to under what circumstances such special status has been conferred on the petitioner-assessee by this court. It seems to be an inadvertent mistake committed by this court. Petition dismissed. The petitioner is given liberty to approach the appellate forum within a period of three weeks from today

Issues Involved:
1. Whether the writ petition should be entertained without exhausting the statutory remedy of appeal.
2. Whether the court can grant special status to a petitioner to bypass the appellate forum.
3. Whether the apprehension of the appeal being time-barred is valid.

Issue-wise Detailed Analysis:

1. Whether the writ petition should be entertained without exhausting the statutory remedy of appeal:

The court considered whether the writ petition should be heard on its merits or if the petitioner should be relegated to the appellate forum. The learned counsel for the Revenue objected to the writ petition, arguing that the petitioner had not exhausted the statutory remedy of appeal as provided under the Orissa Sales Tax Act, 1947. The court referenced several Supreme Court judgments which have consistently held that the remedy of writ is discretionary and should not be exercised unless substantial injustice has ensued or is likely to ensue.

The court cited multiple precedents, including K.S. Rashid and Son v. Income-tax Investigation Commission, Union of India v. T.R. Varma, and State of U.P. v. Mohammad Nooh, which emphasized that the High Court should refuse to grant any writ if the aggrieved party can have an adequate or suitable relief elsewhere. The court reiterated that the power of issuing writs is purely discretionary and should be exercised within recognized lines and not arbitrarily.

2. Whether the court can grant special status to a petitioner to bypass the appellate forum:

The court examined whether it could pass an order in contravention of the statute by allowing the petitioner to bypass the appellate forum. The court noted that a special status had been conferred upon the petitioner by a judicial order dated September 13, 2001, which allowed the petitioner to approach the court directly if the assessment order raised any demand. The court questioned the legality of such an order, stating that it amounted to amending the legislation itself for the benefit of an individual.

The court found no cogent reason for granting such special status and deemed it an inadvertent mistake. The court emphasized that it is the duty of the court to rectify mistakes and not perpetuate an illegality. The court cited Hotel Balaji v. State of Andhra Pradesh, which stated that to rectify an error is the compulsion of judicial conscience.

3. Whether the apprehension of the appeal being time-barred is valid:

The petitioner's counsel raised concerns that the appeal might be rejected as time-barred. The court dismissed this apprehension, stating that while it had the power to entertain the petition, it chose not to exercise this power. The court referenced Danda Rajeshwari v. Bodavula Hanumayamma, which allows the court to prescribe a particular time during which the party may file an appeal if it chooses not to entertain the petition.

The court also cited Virendra Kumar Rai v. Union of India, which held that if a party approached the High Court or Supreme Court in a bona fide manner without approaching the statutory forum, they might be entitled to the benefit of section 14 of the Limitation Act. This would exclude the period for which the petition remained pending before the writ court.

Conclusion:

The court concluded that it was not inclined to entertain the petition on its merits and dismissed it. The petitioner was given liberty to approach the appellate forum within three weeks, and the appellate authority was directed to decide the case on the merits expeditiously, preferably within three months from the date of filing the appeal.

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