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2019 (10) TMI 1518 - HC - VAT and Sales TaxMaintainability of writ petition against the assessment order - availability of alternative remedy of appeal - whether in absence of assessment order passed in original assessment proceeding as the same was a deemed assessment under Section 21 (2) of the VAT Act and levy of penalty under Section 22 (2) of the VAT Act is justified? - HELD THAT - Relying on the judgments of the Supreme Court, the Division Bench of this Court in Income Tax Officer -1 Ors. v Smt. Kamala Ojha 2019 (6) TMI 1439 - CHHATTISGARH HIGH COURT has held that when alternative remedy is available, the writ petition against the re-assessment is not maintainable - In view of the clear pronouncement of the Supreme Court in Chhabil Dass Agarwal 2013 (8) TMI 458 - SUPREME COURT the Writ Petition filed directly challenging the assessment/re-assessment order is not maintainable in view of existence of alternative remedy of appeal under Section 48 of the VAT Act. Whether the deemed assessment is also an assessment under Section 22 (1) of the VAT Act, therefore, a re-assessment of the deemed assessment is not impermissible? - HELD THAT - The issue is not decided on merits for the reason that having found the writ petition not maintainable, the writ petitioner is directed to be relegated before the Appellate Authority by preferring an appeal within a period of 45 days from today. If the merits of the matter is dealt with it may cause prejudice to either of the parties. The common impugned order passed by the Writ Court is set aside and the assessee is directed to move before the Appellate Authority within a period of 45 days from today - appeal allowed - decided in favor of appellant.
Issues:
Challenging assessment order in writ petition under VAT Act - Maintainability of writ petition against re-assessment order. Detailed Analysis: Issue 1: Challenging assessment order in writ petition under VAT Act The High Court considered three Writ Appeals challenging the common order passed by the Single Judge allowing the assessee's writ petitions against the assessment order under the Chhattisgarh Value Added Tax Act, 2005. The primary issues for consideration were the maintainability of a writ petition against the assessment order and the justification of penalty under the VAT Act due to the absence of an assessment order in the original assessment proceedings, leading to a deemed assessment. Issue 1 Analysis: The assessee contended that no assessment order was passed in the original assessment proceedings, resulting in a deemed assessment. The Single Judge referred to various judgments to establish the maintainability of the writ petition against the re-assessment order. The State argued that since the re-assessment order was appealable under Section 48 of the VAT Act, the writ petition was not maintainable, citing the decision in Commissioner of Income Tax v. Chhabil Dass Agarwal (2014) 1 SCC 603. The High Court analyzed the precedents and concluded that the writ petition directly challenging the assessment/re-assessment order was not maintainable due to the availability of an alternative remedy of appeal under the VAT Act. Issue 2: Maintainability of writ petition against re-assessment order The High Court discussed the judgments of the Supreme Court regarding the necessity of exhausting alternate remedies before approaching the Writ Court. It was emphasized that the assessee should have first addressed grievances and explained their stand to the Assessing Authority before filing a writ petition. The Court referred to previous cases where the High Court should not have interfered in matters where the Writ Petition was filed without exhausting statutory remedies. The High Court held that the writ petition challenging the re-assessment order was not maintainable and directed the assessee to move before the Appellate Authority within a specified period. In conclusion, the High Court allowed all writ appeals, setting aside the common impugned order and directing the assessee to appeal before the Appellate Authority within 45 days. The Court refrained from deciding on the merits to avoid prejudice to either party. The judgment highlighted the importance of exhausting statutory remedies before resorting to writ petitions, emphasizing the principles of judicial procedure and the availability of effective alternative remedies under the law.
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