2014 (9) TMI 339 - HC - VAT and Sales Tax

Quashing the demand notices of taxes payable under Jharkhand Sales Tax Act and Central Sales Tax Act for the periods 2001-02 to 2005-06 - Without availing the statutory remedy available under Bihar and Orissa Public Demand Recovery Act, 1914, whether the petitioner can challenge the demand notices and Certificate Proceedings by invoking the writ jurisdiction - Held that - while the petitioner was pursuing writ petition, W.P(C) No.167/2005, the petitioner did not seem to have been diligent in pursuing his application for certified copies of the assessment orders. When there is delay and laches on the part of the petitioner, the Court will be loath to come to the aid of such person. Challenging the certificate proceeding and having not filed appropriate application in the prescribed Form, the petitioner cannot plead for showing indulgence. In fact, W.P(C) No.167/2005 was dismissed on 22.12.2008 giving liberty to the petitioner to avail the statutory remedy of appeal for redressal of its grievance. Having not availed the statutory remedy of appeal, the petitioner cannot turn around and challenge the notices of demand on the ground that the certified copies of the assessment orders were not issued to him and the petitioner was not able to avail of the statutory remedy of appeal. Therefore, the petitioner cannot seek for a direction upon the respondents to issue certified copies of the assessment orders to pursue the statutory remedy of appeal. If the party is aggrieved by the order of the Certificate Officer, it is always open to him to pursue the remedy of appeal as per the provisions of Section 60 of the PDR Act. In our considered view, the petitioners have filed the writ petitions circumventing the procedures of the Bihar and Orissa Public Demands Recovery Act, 1914 and the provisions of the appeal thereon and by invoking the writ jurisdiction, the petitioners are directly trying to agitate the issues based on facts and on consideration of evidence. When efficacious alternative remedy is available to the petitioners, no relief can be granted to the petitioners in these writ petitions - The order of winding up of the petitioner company is subsequent to the initiation of the certificate proceedings. In fact, the petitioner, in objection under Section 9 of the PDR Act, has also indicated about the pendency of the winding up petition. It is for the petitioner to bring to the notice of the Certificate Officer regarding the winding up order passed on 2.2.2013 and merely on the ground of pendency of the winding up petition, the certificate proceedings cannot be quashed. - Decided against assessee.

Summary

Issues Involved:
1. Quashing of demand notices of taxes under Jharkhand Sales Tax Act and Central Sales Tax Act for the periods 2001-02 to 2005-06.
2. Quashing of Certificate Cases initiated for realization of dues.
3. Direction to respondents not to realize the alleged dues and other reliefs.

Issue-wise Detailed Analysis:

1. Quashing of Demand Notices:

The petitioners sought to quash demand notices under Section 13(4) of the Bihar Finance Act, 1981 for the period 2001-02 to 2005-06. The petitioners argued that they were not provided with certified copies of the assessment orders despite multiple applications and reminders, which impeded their ability to file appeals. The respondents countered that the petitioners did not comply with the prescribed procedure for obtaining certified copies, specifically not using Board's Miscellaneous Form No.124. The court found that the petitioners failed to apply for certified copies in the correct format and thus, the department could not be blamed for non-supply of the documents. Therefore, the petitioners' plea to quash the demand notices was dismissed.

2. Quashing of Certificate Cases:

The petitioners challenged the Certificate Cases initiated under the Bihar and Orissa Public Demands Recovery Act, 1914 (PDR Act) for the realization of dues. They argued that the assessment orders were ante-dated and passed without proper opportunity for hearing. The court noted that the petitioners had previously engaged in assessment proceedings and had not diligently pursued their applications for certified copies. The court emphasized that the PDR Act provides a complete mechanism for redressal, including filing objections and appeals. Since the petitioners had not utilized these statutory remedies, the court held that the certificate proceedings could not be quashed.

3. Direction to Respondents Not to Realize Dues:

The petitioners sought a direction to prevent the respondents from realizing the alleged dues, citing pending liquidation/winding up proceedings in the Calcutta High Court. The court observed that the winding up order was subsequent to the initiation of the certificate proceedings. It was incumbent upon the petitioners to inform the Certificate Officer about the winding up order. The court ruled that the pending winding up petition did not justify quashing the certificate proceedings and that the statutory procedure under the PDR Act must be followed.

Conclusion:

The court dismissed all three writ petitions, emphasizing the availability of statutory remedies under the Bihar Finance Act and the PDR Act, which the petitioners failed to exhaust. The court reiterated that writ jurisdiction cannot be invoked to bypass these statutory procedures, especially in matters involving revenue recovery.