2014 (4) TMI 127 - HC - VAT and Sales Tax

Jurisdiction of High Court Alternative remedy available - Appealability u/s 80 of Assam VAT Act Held that - Assessee has a statutory right of appeal Tribunal under the Act against the order of AC taxes Assam - In a situation like the one where the petitioner has a statutory right of appeal under the Act this Court was afraid to entertain the writ petition under Article 226/227 of the Constitution of India to examine the legality and correctness of the said order - The normal and ordinary remedy of the petitioner in such case is to take recourse to filing of the statutory appeal which is always considered as an alternative and effective remedy in law - It is only when the statutory remedies available to the petitioner are exhausted the petitioner becomes entitled to challenge the last order by filing a writ petition under Article 226/227 of the Constitution of India if occasion so arises but not in between. High court held that they were not inclined to entertain the writ petition at this stage for examining the legality and correctness of the order passed by AC Taxes and granted liberty to assessee to file appeal before the Board of Revenue - No opinion on the merits - Petition dismissed in limine Decided against assessee.

Summary

Issues:
- Entertaining a writ petition under Article 226/227 of the Constitution of India to examine the legality and correctness of an order when a statutory right of appeal exists under the Assam Value Added Tax Act, 2003.

Analysis:
The High Court, comprising A. M. Sapre CJ and A. K. Goswami, JJ., heard arguments from the petitioner's counsel and the Standing Counsel for Finance & Taxation. The Court noted that the order being challenged, dated 12th September, 2011, by the Additional Commissioner of Taxes, Assam, is appealable under Section 80 of the Assam Value Added Tax Act before the Assam Board of Revenue. The Court emphasized that when a statutory right of appeal exists, the normal remedy for a petitioner is to file the appeal and exhaust the statutory remedies before resorting to a writ petition under Article 226/227 of the Constitution of India. The Court clarified that a writ petition can only be entertained if the statutory remedies are exhausted. Therefore, in this case, the Court declined to entertain the writ petition at that stage and granted liberty to the petitioner to file an appeal before the Board of Revenue.

Furthermore, the Court directed that if the petitioner files an appeal within one month under Section 80 of the Act before the Board of Revenue against the order of the Additional Commissioner of Taxes, the appeal shall be heard and decided on its merits and in accordance with the law. The Court made it clear that it was dismissing the writ petition without expressing any opinion on the merits of the case, but with the granting of liberty to the petitioner as mentioned earlier. Finally, the Court ordered that no costs were to be imposed in this matter.