2010 (2) TMI 1108 - HC - VAT and Sales Tax

Grievance of the petitioner against the assessment order dated September 5, 2009 passed by opposite-party No. 3 for the assessment year 2005-06. Grievance of the petitioner in respect to the order dated October 22, 2009/November 3, 2009 passed by opposite-party No. 3. Held that - The present writ petition filed by the petitioner, so far it relates to the challenge of the assessment order dated September 5, 2009 passed by the assessing authority (opposite-party No. 3) in the assessment year 2005-06, is dismissed on the ground of alternate remedy available to the petitioner under section 9 of the Act. However if the petitioner seeks the said alternate remedy before the appellate authority then in that circumstances, the appeal of the petitioner shall not be dismissed on the ground of limitation by the appellate authority but the same may be adjudicated and decided on the merits after hearing the parties concerned in accordance with law. The impugned order dated October 22, 2009/November 3, 2009 passed by opposite-party No. 2 thereby rejecting the petitioner s application dated January 16, 2006 on the ground that the same was filed beyond the statutory period of limitation, i.e., 60 days as provided in said section is an action beside being contrary to law is also in violation of principles of natural justice and fair-play. As such the order dated October 22, 2009/November 3, 2009 passed by opposite-party No. 2 cannot sustain under law and the matter is remanded back to the said authority to consider and decide the application of the petitioner under sub-section (2B) of section 4A of the U.P. Trade Tax Act, 1948 for amendment of eligibility certificate already granted in favour of OSL which merged with the petitioner s company after providing due opportunity of hearing, in accordance with law.

Summary

Issues Involved:
1. Grievance against the assessment order dated September 5, 2009, for the assessment year 2005-06.
2. Grievance against the order dated October 22, 2009/November 3, 2009, regarding the rejection of the application for amendment in the eligibility certificate.

Detailed Analysis:

1. Grievance against the Assessment Order Dated September 5, 2009:
The petitioner challenged the assessment order dated September 5, 2009, passed by the assessing authority (opposite-party No. 3) for the assessment year 2005-06. The petitioner argued that the order was illegal, arbitrary, and without jurisdiction as it was passed during the pendency of their application under sub-section (2B) of section 4A of the U.P. Trade Tax Act, 1948, for amendments in the eligibility certificate. The court noted that the petitioner had an alternate statutory remedy by way of appeal under section 9 of the U.P. Trade Tax Act, 1948. Citing precedents such as *Titaghur Paper Mills Co. Ltd. v. State of Orissa* and *Central Coalfields Ltd. v. State of Jharkhand*, the court dismissed this part of the writ petition on the ground of alternate remedy. The court directed that if the petitioner seeks the alternate remedy, the appeal should not be dismissed on the ground of limitation but should be decided on the merits.

2. Grievance against the Order Dated October 22, 2009/November 3, 2009:
The petitioner also challenged the order dated October 22, 2009/November 3, 2009, passed by opposite-party No. 2, which rejected their application for amendment in the eligibility certificate on the ground that it was filed beyond the statutory period of 60 days. The petitioner contended that the starting point of limitation should be the date of receipt of the BIFR order (November 29, 2005), not the date of issuance (November 16, 2005). The court agreed with this argument, citing cases such as *Commissioner of Sales Tax, U.P., Lucknow v. Navyug Brishak Suppliers, Chandausi* and *Krishna Paper House, Allahabad v. Commissioner of Sales Tax, U.P.*, which established that the limitation period should commence from the date of communication of the order. The court found that the impugned order was contrary to law and violated principles of natural justice and fair play.

The court rejected the preliminary objection raised by the respondent regarding the availability of an alternate remedy under section 10 of the Act, referencing the *Whirlpool Corporation v. Registrar of Trade Marks, Mumbai* case, which held that alternate remedies are not an absolute bar when orders are passed in violation of natural justice.

Conclusion:
The court set aside the order dated October 22, 2009/November 3, 2009, and remanded the matter back to the authority to reconsider and decide the application for amendment of the eligibility certificate after providing due opportunity of hearing, in accordance with law. The writ petition was allowed in part, with no order as to costs.