2012 (3) TMI 394 - HC - VAT and Sales Tax

Tax demand - locus standi to file writ petition - Held that - For determination of question of fact requires technical expertise of the Department in view of the observation of the honourable apex court as this issue is not of law only and therefore, in the facts of the case where it is required to be decided after considering the evidences of the parties then it would be appropriate, in this case, that the petitioner may approach the appellate authority by preferring appeal and therefore, we are not inclined to entertain the writ petition as we are of the view that the petitioner can avail of the remedy available in the Act, 1981. Hence, the writ petition is dismissed on the ground of availability of alternative remedy only.

Summary

Issues:
1. Maintainability of the writ petition due to the availability of an alternative remedy of appeal under section 45 of the Bihar Finance Act, 1981.

Analysis:
The judgment involves a dispute arising from a demand issued by the Deputy Commissioner of Commercial Taxes, initially against a company, which was later challenged in court. The High Court dismissed the initial petition, stating that the actual taxpayer should have challenged the action. The matter was then taken to the Supreme Court by both the original company and the present petitioner. The Supreme Court remanded the case to the assessing officer, allowing the present petitioner to participate in the assessment proceedings. The assessing officer ultimately held that the oxygen in question was not a raw material. The petitioner then sought to challenge this assessment order through a writ petition.

The State raised objections to the maintainability of the writ petition, citing the availability of an appeal under section 45 of the Bihar Finance Act, 1981. The petitioner argued that only a dealer could prefer an appeal under the Act, not any affected party. The court analyzed the provisions of section 45(1) of the Act, which allowed for appeals by both dealers and non-dealers in specific circumstances. Given the unique facts of the case, where the petitioner was allowed to participate in the assessment proceedings by the Supreme Court, the court concluded that the petitioner could indeed prefer an appeal under the Act.

The court emphasized that allowing the petitioner to challenge the order through a writ petition could lead to multiple proceedings and was not warranted in this case. It was determined that the technical expertise of the Department was necessary to decide the factual issue at hand, making it more appropriate for the petitioner to approach the appellate authority by filing an appeal. Consequently, the court dismissed the writ petition on the grounds of the availability of an alternative remedy under the Act.

The petitioner requested intervention in any appeal filed by the original company or sought permission to file an appeal if the company had not done so. The court acknowledged these requests and expressed expectations for the timely appointment of an officer to handle the appeal process, ensuring the petitioner's opportunity to pursue the available legal remedies.