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2017 (12) TMI 263 - HC - VAT and Sales TaxValidity of assessment order - time limitation - APVAT Act - case of petitioner is that out of the block period of 1.9.2005 to 31.3.2012, the period of 1.9.2005 to March 2009 falls beyond the limitation period of four years, that therefore respondent No.4 had no jurisdiction to pass such an order and that, as the power exercised by respondent No.4 is without jurisdiction - case of Revenue is that the writ petition was filed bypassing the effective alternative remedy of appeal before the A.P. VAT Tribunal and that therefore the same is liable to be dismissed in limine - Held that - The rule of alternative remedy is not a rule of law, but a self imposed restriction by the Constitutional Courts. When a statute created efficacious remedies, a litigant cannot insist on entertaining the writ petition without availing such remedies. Though availability of an alternative remedy is not an absolute bar for entertaining the writ petition, ordinarily this Court would not allow a litigant to bypass an alternative remedy except in exceptional situations. It is not the pleaded case of the petitioner that its case falls in any of the exceptions recognized by the Supreme Court as discussed above or that the issue raised in this writ petition cannot be adjudicated by the A.P. VAT Tribunal presided by no less an officer of a Special Grade District Judge - the petitioner is not entitled to invoke the jurisdiction of this Court without availing the statutory remedy of appeal before the Tribunal. Time limitation - case of Revenue is also that as the petitioner has not raised the aspect of limitation in both the rounds of litigation before the Assessing Officer as well as the Deputy Commissioner, it is barred from raising such plea in the present writ petition - Held that - the counsel for the petitioner is labouring under a misconception that this Court has duty and obligation to entertain writ petitions in order to set aside every wrong or illegal order. The law is well settled that the jurisdiction under Article 226 of the Constitution of India is discretionary and this Court would not be compelled to adjudicate upon the merits of a case merely because a case is made out that the order challenged before it is illegal. While exercising the jurisdiction under Article 226 of the Constitution, this Court would consider the conduct of the party and the facts and circumstances of the case, before adjudicating the case on merits. Limitation being a mixed question of law and fact, has to be necessarily raised by a party in order that the adjudicating authority applies its mind and renders a finding thereon. The petitioner has not offered any semblance of explanation as to why and for what reason it has failed to raise the issue of limitation - the conduct of the petitioner shows that there is lack of diligence in raising necessary plea which ought to be raised by it and a decision invited thereon. The absence of explanation on the part of the petitioner for not raising the objection in spite of repeated opportunities to raise such objection, both before the original and the appellate authority, would give rise to a presumption that it has deliberately not raised the issue in order to avoid a finding from the jurisdictional hierarchical authorities. Petition dismissed - decided against petitioner.
Issues Involved:
1. Jurisdiction and limitation in assessment orders. 2. Availability of alternative remedy. 3. Conduct of the petitioner in raising objections. 4. Discretionary nature of writ jurisdiction. Detailed Analysis: 1. Jurisdiction and Limitation in Assessment Orders: The petitioner challenged the assessment order dated 18.3.2015, confirmed by the order dated 31.3.2017, on grounds of being illegal, arbitrary, barred by limitation, and without jurisdiction. The petitioner argued that the period from 1.9.2005 to March 2009 fell beyond the limitation period of four years, rendering the assessment order void. However, the court noted that the petitioner failed to raise the issue of limitation in both rounds of litigation before the Assessing Officer and the Deputy Commissioner. The court emphasized that limitation is a mixed question of law and fact that must be raised by the party for proper adjudication. 2. Availability of Alternative Remedy: The court highlighted the principle that when a statute provides an effective alternative remedy, a writ petition should not be entertained bypassing such remedies. The petitioner bypassed the statutory remedy of appeal before the A.P. VAT Tribunal under Section 33 of the A.P. Value Added Tax Act, 2005, and directly filed the writ petition. The court referred to several precedents, including Thansingh Nathmal v. Superintendent of Taxes and Titaghur Paper Mills Co. Ltd. v. State of Orissa, to affirm that the High Court typically does not entertain writ petitions when an alternative remedy is available, except in exceptional situations such as lack of jurisdiction, violation of natural justice, or ultra vires provisions. 3. Conduct of the Petitioner in Raising Objections: The court scrutinized the petitioner's conduct and noted that the issue of limitation was not raised in the initial objections before the Assessing Officer, nor in the appeals before the Deputy Commissioner. The petitioner’s failure to raise the limitation issue at the appropriate stages suggested a lack of diligence. The court emphasized that the jurisdiction under Article 226 of the Constitution is discretionary and should not be exercised merely because an order is illegal. The conduct of the petitioner and the circumstances of the case are crucial factors in deciding whether to entertain a writ petition. 4. Discretionary Nature of Writ Jurisdiction: The court reiterated that the jurisdiction under Article 226 is discretionary and should be exercised judiciously. The court referred to several judgments, including Sangram Singh v. Election Tribunal and State of Maharashtra v. Digambar, to underline that writ jurisdiction is not meant to correct mere errors of law but to address substantial injustice. The court also cited Mafatlal Industries v. Union of India to stress that while the High Court's jurisdiction under Article 226 cannot be barred by statutory provisions, it should be exercised in harmony with the legislative intent of providing alternative remedies. Conclusion: The court concluded that the petitioner was not entitled to invoke the jurisdiction of the High Court without first availing the statutory remedy of appeal before the A.P. VAT Tribunal. The writ petition was dismissed with costs of ?10,000, and the petitioner was allowed to raise the plea of limitation before the A.P. VAT Tribunal, which would adjudicate the matter on merits without being influenced by the High Court's observations.
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