2018 (7) TMI 1518 - HC - VAT and Sales Tax

Maintainability of petition - alternative remedy of appeal - Held that - The petitioner, in fact, bona fide pursued his remedy here, and this Court now holds that the petitioner s remedy lies elsewhere before the appellate authority - Fairness demands, under these circumstances, that the petitioner be given time to approach the appellate forum. In the meanwhile, the respondent should not take steps that may render the petitioner s statutory remedy illusory. The respondent should defer coercive steps for six weeks from today, and the petitioner, in the meanwhile, approach the appellate forum.

Summary

Issues:
1. Petitioner's challenge to the order issued for the assessment year 2013-2014 under the Kerala General Sales Tax Act.
2. Petitioner's application for rectification under section 43 of the Act.
3. Alleged errors in the order and subsequent submissions by the petitioner.
4. Petitioner's contention regarding the authority's failure to consider a binding judgment.
5. Availability of an alternative remedy under Section 34 of the Act.

Analysis:

1. The petitioner, a registered dealer under the Kerala General Sales Tax Act, challenged the order issued for the assessment year 2013-2014 due to suspicions of suppression by the assessing authorities. The petitioner filed an application for rectification under section 43 of the Act, seeking modifications to the order (Ext.P8) issued by the Assistant Commissioner of State Tax.

2. Initially, the petitioner approached the Court for relief, which resulted in the issuance of a revised notice by the first respondent after a judgment was produced. Subsequently, the first respondent reiterated the earlier findings in Ext.P12, leading to the petitioner filing a writ petition to quash the order.

3. The petitioner's counsel argued that the first respondent disregarded a binding judgment from the Court and rendered the Ext.P12 order mechanically. Reference was made to a judgment in a similar case to support the contention that the authority should reconsider the issue.

4. The Government Pleader contended that the petitioner has an alternative remedy under Section 34 of the Act, which allows raising objections before the appellate authority. The Court acknowledged that the first respondent did consider the previous judgment but held that it did not apply, emphasizing the availability of the appellate forum for redressal.

5. Ultimately, the Court concluded that the petitioner indeed has an alternative remedy under Section 34 of the Act and dismissed the writ petition on this basis. However, recognizing the petitioner's bona fide pursuit of remedy, the Court granted six weeks for the petitioner to approach the appellate forum, instructing the respondent to defer coercive steps during this period to ensure the statutory remedy is not rendered illusory.