2014 (8) TMI 1205 - HC - VAT and Sales Tax

Maintainability of petition - availability of alternative remedy of appeal - Section 45 of the HP VAT Act, 2005 - impugned orders have been issued by the Assistant Excise and Taxation Commissioner-cum-Assessing Authority - when an Act provides mechanism to have remedy (ies), can a writ lie in the given circumstances? - HELD THAT - The answer is in the negative for the following reasons. It is well settled principle of law that High Courts have imposed rule of self limitation in entertaining the writ petition in terms of writ jurisdiction when alternative remedy is available. High Court must not interfere if there is adequate efficacious alternative remedy available and the practice of approaching the High Court, without availing the remedy (ies) provided, must be deprecated, unless express case is made out. The Apex Court in Nivedita Sharma v. Cellular Operators Association of India, 2011 (12) TMI 536 - SUPREME COURT , after discussing its various earlier decisions, held that the High Court had committed error in entertaining the writ petition without noticing and referring to the relevant provisions of law applicable in that case, which contained statutory remedy of appeal and accordingly set aside the order of the High Court in terms of which the writ petition was entertained. The writ petitioners-Company have remedies of appeal(s), before approaching the High Court by way of the writ petitions, for the redressal of their grievances. The petitioners ought to have exhausted the remedy of appeal before the Deputy Excise and Taxation Commissioner or Additional Excise and Taxation Commissioner or the Excise Commissioner, as the case may be, and if the petitioners were not successful in those appeal proceedings, another remedy available to them was to challenge the said order(s) by the medium of appeal before the Tribunal, and again, if they were unsuccessful, they could have availed the remedy of revision before the High Court in terms of Section 48 of the HP VAT Act, 2005 - Keeping in view the discussion made, read with the fact that the dispute raised in these writ petitions relates to revenue/tax matters, it can safely be concluded that the petitioners have sufficient efficacious remedy (ies) available. The writ petitioners have alternative efficacious remedy available and these writ petitions are not maintainable. Accordingly, the same merit to be dismissed in limine - Petition dismissed.

Summary

Issues Involved:
1. Maintainability of the writ petitions.
2. Availability of alternative efficacious remedy.
3. Alleged violation of principles of natural justice.
4. Jurisdiction and bias of the Assessing Authority.
5. Requirement to deposit tax before appeal under Section 45(5) of the HP VAT Act, 2005.

Detailed Analysis:

1. Maintainability of the Writ Petitions:
The core issue was whether the writ petitions were maintainable given the statutory remedies available under the Himachal Pradesh Value Added Tax Act, 2005 (HP VAT Act, 2005). The court emphasized that the HP VAT Act provides a comprehensive mechanism for appeals and revisions against orders passed by the Assessing Authority. The court held that the existence of an alternative remedy is a significant factor, and High Courts generally refrain from exercising writ jurisdiction when such remedies are available unless exceptional circumstances are demonstrated.

2. Availability of Alternative Efficacious Remedy:
The court noted that the HP VAT Act, 2005, clearly outlines a structured appeal process. Section 45 of the Act specifies that orders by the Assessing Authority can be appealed to the Deputy Excise and Taxation Commissioner, and further appeals can be made to the Tribunal. Section 48 allows for revision petitions to the High Court. The court concluded that the petitioners should have exhausted these statutory remedies before approaching the High Court. The court cited several precedents, including Union of India v. Guwahati Carbon Limited and Commissioner of Income Tax v. Chhabil Dass Agarwal, reinforcing the principle that statutory remedies must be pursued first.

3. Alleged Violation of Principles of Natural Justice:
The petitioners argued that the impugned orders were issued without affording them an opportunity of hearing, thus violating the principles of natural justice. The court acknowledged this contention but held that the availability of an appeal process within the statutory framework was sufficient to address such grievances. The court reiterated that writ jurisdiction should not be invoked merely because an alternative remedy might be inconvenient or burdensome.

4. Jurisdiction and Bias of the Assessing Authority:
The petitioners also claimed that the orders were passed under the dictation of higher officials, indicating bias and lack of jurisdiction. However, the court found no substantial arguments or evidence to support these allegations. The court emphasized that the proper forum to address such issues was through the appeal mechanism provided under the HP VAT Act, 2005.

5. Requirement to Deposit Tax Before Appeal:
Section 45(5) of the HP VAT Act, 2005, mandates that no appeal shall be entertained unless accompanied by satisfactory proof of payment of the assessed tax, interest, and penalty. The petitioners seemed to challenge this requirement indirectly by filing writ petitions. The court observed that this statutory requirement could not be bypassed by directly approaching the High Court. The court highlighted that the statutory provisions also allow for exceptions where the appellate authority can entertain an appeal without full payment for recorded reasons.

Conclusion:
The court dismissed the writ petitions, emphasizing the need to exhaust statutory remedies before invoking writ jurisdiction. The court clarified that the period spent in prosecuting the writ petitions would be excluded from the limitation period for filing appeals. The judgment underscored the importance of adhering to the statutory appeal process and the limited scope of writ jurisdiction in tax matters.