2012 (1) TMI 133 - HC - VAT and Sales Tax

Writ petition under articles 226/227 of the Constitution of India challenging assessment order dated March 31, 2011, annexure P3, for the assessment year 2007-08 Held that - We refrain from interfering with the assessment order and dispose of the writ petition by relegating the petitioner to the appellate authority to challenge the assessment order before it. It is, however observed that in case the appeal is filed within 15 days from today, then application for condonation of delay shall be considered by the appellate authority sympathetically.

Summary

Issues: Challenge to assessment order under articles 226/227 of the Constitution of India for the assessment year 2007-08; rejection of returns filed by petitioner claiming exemption under section 6(2) of the CST Act; dismissal of application for rectification of assessment order under section 19 of the HVAT Act; preliminary objection raised regarding appealable order; consideration of writ petition without insisting on statutory remedies.

Analysis:
1. The petitioner, engaged in works contracts, challenged the assessment order for the assessment year 2007-08, claiming exemption under section 6(2) of the CST Act for a transit sale. The assessing authority rejected the returns and disallowed the claimed exemption, leading to the petitioner filing an application for rectification of the assessment order under section 19 of the HVAT Act, which was subsequently dismissed.

2. The petitioner contended that the assessment violated judgments of the apex court, arguing that the assessing authority exceeded its jurisdiction in framing the assessment. However, a preliminary objection was raised that the order was appealable, with the first appeal lying to the Joint Excise and Taxation Commissioner (A) and further appeals available before the Value Added Tax Tribunal and the High Court for substantial questions of law.

3. The court, after considering the submissions, upheld the preliminary objection raised by the State counsel. The court outlined the circumstances under which a writ petition can be entertained without insisting on statutory remedies, emphasizing the enforcement of fundamental rights, failure of natural justice principles, or challenges to orders without jurisdiction or the vires of an Act.

4. Referring to previous judgments, the court noted that the Act provided a hierarchy of authorities for redress against wrongful acts, including appeals and a complete machinery to challenge an order of assessment. The court highlighted that a right or liability created by statute with a special remedy must be pursued through the prescribed statutory channels, rather than through a writ petition under article 226 of the Constitution.

5. Consequently, the court refrained from interfering with the assessment order and disposed of the writ petition by directing the petitioner to challenge the assessment order before the appellate authority. The court also mentioned that if an appeal was filed promptly, any application for condonation of delay would be sympathetically considered by the appellate authority within 15 days.