2019 (10) TMI 1451 - HC - VAT and Sales Tax

Maintainability of petition - availability of alternative remedy of appeal - Levy of tax - business of airing/broadcasting programs including commercial advertisements - service provider covered under SRO 117 dated March 30, 2007 or not - Whether the appellant is a service provider covered under SRO 117 dated 30.03.2007 and whether the services so rendered are taxable under J K GST Act? - HELD THAT - The issue which is required to be considered by this Court at this stage is as to what is the remedy available to the petitioner to impugn the orders passed by the Tribunal. And further, as to whether bypassing that remedy, writ petition can be filed - As per the scheme of the Act, orders of the assessment are passed under Section 7(10) of the Act against which appeal lies to the 1st Appellate Authority under Section 11 of the Act. Section 12 of the Act deals with the appeals to the Tribunal and the remedies available thereafter. A perusal of section 12-D of the Act shows that after the appeal is decided by the Tribunal, any party aggrieved of against the same can file application to the Tribunal seeking reference of question(s) of law arising out of the order of the Tribunal, to this Court for its opinion. The period for filing such an application has been prescribed in Section 12-D(1) as 90 days. The same is extendable further by 30 days - Section 12-D of the Act further provides that in case the Tribunal rejects the application seeking reference of question(s) of law arising out of the order of Tribunal to this Court, the aggrieved party can file application before this court seeking a direction to the Tribunal to refer the aforesaid question(s) to this court for its opinion. The petitioner has bypassed that remedy and approached this court by filing the present writ petition on 17.09.2012, in which the respondent No.1 appeared on its own on 10.10.2012. The instant petition is not a writ petition filed by an assessee, where additional prayer for stay of recovery of tax has been made. Even that may have to be considered keeping in the provisions of the Act - The argument that the alternative remedy may not be effective also deserves to be rejected for the reason that even the question of law sought to be raised by the petitioner, as arising from the order of the Tribunal, have also to be answered by this Court. Rule 2(d) of the Jammu and Kashmir Writ Proceedings Rules, 1997 provides that a specific statement has to be made regarding the nonavailability of an alternative remedy against the impugned action and as to whether the same has been availed of or not - In the case in hand, in the writ petition, nothing has been stated regarding availability of alternative remedy available to the petitioner against the orders impugned in the writ petition. A writ petition filed without complying with the mandatory requirements as provided for in the Jammu and Kashmir Writ Proceedings Rules, 1997 has to be dismissed. No doubt, not without affording opportunity to the party concerned to meet with the objection. The preliminary objection raised by learned counsel for the respondent No 1 has to be sustained and the writ petition deserves to be dismissed on the ground of availability of an effective alternative remedy against the order impugned in the writ petition - Petition dismissed.

Summary

Issues Involved:
1. Maintainability of the writ petition.
2. Availability of an alternative remedy.
3. Interpretation of Section 12-D of the J&K General Sales Tax Act, 1962.
4. Exclusion of the period spent in the court for the purpose of limitation.

Issue-wise Detailed Analysis:

1. Maintainability of the Writ Petition:
The writ petition was filed by the State challenging the order dated February 22, 2012, passed by the J&K State Sales Tax (Appellate) Tribunal. The respondent raised a preliminary objection regarding the maintainability of the writ petition, arguing that the State had an alternative remedy under Section 12-D of the J&K General Sales Tax Act, 1962, which it bypassed. The court noted that the writ petition does not contain any question(s) of law and emphasized that writ petitions should not be entertained when an effective alternative remedy is available, especially after the expiry of the prescribed period for filing such applications.

2. Availability of an Alternative Remedy:
The court examined the provisions of Section 12-D of the Act, which allows an aggrieved party to file an application to the Tribunal seeking a reference of question(s) of law arising out of the Tribunal's order to the High Court. The period for filing such an application is 90 days, extendable by 30 days. The State bypassed this remedy and directly approached the High Court. The court reiterated that the availability of an alternative remedy is a significant factor in determining the maintainability of a writ petition.

3. Interpretation of Section 12-D of the J&K General Sales Tax Act, 1962:
The court detailed the provisions of Section 12-D, explaining the process for referring questions of law to the High Court. It highlighted that if the Tribunal refuses to state the case, the aggrieved party can apply to the High Court for a direction to the Tribunal to refer the question(s) of law. The court found that the State had not complied with these provisions and had instead filed the writ petition to circumvent the process, which was not permissible.

4. Exclusion of the Period Spent in Court for the Purpose of Limitation:
The court considered the State's request to exclude the period spent in court from the limitation period for filing the application before the Tribunal. The court agreed with this argument and directed that if the State files the application(s) before the Tribunal within three weeks from the date of the judgment, the period spent in the present proceedings would be excluded while calculating the period of limitation.

Conclusion:
The court upheld the preliminary objection raised by the respondent regarding the maintainability of the writ petition due to the availability of an alternative remedy under Section 12-D of the Act. The writ petition was dismissed on this ground. However, the court allowed the exclusion of the period spent in court for the purpose of limitation, giving the State three weeks to file the appropriate application before the Tribunal. The court did not express any opinion on the merits of the questions raised in the writ petition, leaving the Tribunal to proceed uninfluenced by any observations made in the judgment.