2012 (12) TMI 318 - HC - VAT and Sales Tax

H. P. Value Added Tax Act notice - Excise and Taxation Commissioner-cum- Appellate Authority, in exercise of its power under section 46(1) of the Act, issued a notice to the petitioner calling upon the petitioner to give his response. The said notice has been challenged by the petitioner before this court in the present writ petition - petitioner submitted appellate authority cannot be treated to be authority, subordinate to the Commissioner (Excise and Taxation) for the purpose of section 46 of the Act Held that - Any proceedings include assessment proceeding or miscellaneous proceedings or appellate proceedings and any authority subordinate to the Commissioner includes authorities up to Additional Commissioner level discharging the work of assessment or discharging the work of check-post, etc. Section 46 does not indicate that the Additional Commissioner while working as an appellate authority is excluded from authority subordinate to the Commissioner - writ petition is disposed of with an observation that since the petitioner has bona fidely been pursuing his grievances before this court, as such, if the petitioner approaches before the Tribunal, then period for which the writ petition was pending before the High Court may be excluded from the limitation period as provided under section 46(3) of the H. P. Value Added Tax Act

Summary

Issues:
1. Validity of notice under section 46(1) of the H. P. Value Added Tax Act, 2005.
2. Jurisdiction of the Commissioner (Excise and Taxation) to exercise revisional power under section 46.
3. Interpretation of the term "authority subordinate to the Commissioner" under section 46 of the Act.
4. Applicability of section 46(3) for challenging orders and limitation period.

Analysis:
1. The petitioner, a registered dealer under the H. P. Value Added Tax Act, challenged a notice dated April 22, 2011, issued under section 46(1) of the Act. The notice was issued by the Excise and Taxation Commissioner-cum-Appellate Authority, calling for a response regarding an assessment order. The High Court granted liberty to the petitioner to reply to the notice and directed the Commissioner not to enforce any order without court permission.

2. The key argument raised was whether the Commissioner (Excise and Taxation) could exercise revisional power under section 46 to review the legality of an order passed by the Additional Commissioner in an appellate capacity. The court held that the Commissioner could call for records of proceedings pending before any authority subordinate to him, including appellate authorities. The petitioner was advised to seek redressal before the Tribunal under section 46(3) as the order in question had not been challenged.

3. The interpretation of the term "authority subordinate to the Commissioner" was crucial. The court opined that this term encompassed authorities up to the level of Additional Commissioner, handling assessment, check-post duties, and appellate functions. It was clarified that the Additional Commissioner acting as an appellate authority was not excluded from being considered subordinate to the Commissioner.

4. Regarding the applicability of section 46(3) and the limitation period for challenging orders, the court emphasized that the petitioner could approach the Tribunal for relief. As the order dated November 19, 2011, had not been contested, the court disposed of the writ petition, advising the petitioner to pursue remedies before the appropriate forum. The court also noted that the period during which the writ petition was pending before the High Court could be excluded from the limitation period specified under section 46(3) of the Act.

In conclusion, the High Court's judgment clarified the jurisdiction of the Commissioner to exercise revisional powers, the scope of authorities subordinate to him, and the recourse available to aggrieved parties under the relevant provisions of the H. P. Value Added Tax Act, 2005.