2018 (12) TMI 1011 - HC - VAT and Sales Tax

Validity of assessment order - TVAT Act - maintainability of petition - availability of alternative effective remedy of appeal - Held that - The apex court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai 1998 (10) TMI 510 - SUPREME COURT observed that the alternative remedy may not come as a bar invoking the writ jurisdiction of this court under article 226 of the Constitution of India being plenary in nature and is not limited by any other provision of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition, but has imposed upon itself certain restrictions where an effective or efficacious remedy is available but under three exceptions the alternative statutory remedy may not operate as a bar in entertaining the writ petition filed under article 226 of the Constitution of India. Although there is no pleadings on record as to why the statutory remedy of appeal is not effective and efficacious remedy available under the Act, 2004, the reason prima facie appears to be a condition of pre-deposit as envisaged under proviso to section 69 of the Act, 2004 but that may not be a reason for this court to entertain the present writ petition under article 226 of the Constitution and this court is clear in its view that as long as the statutory remedy is available under the statute, it is advisable for this court to restrain from exercising its inherent jurisdiction under article 226 of the Constitution. It may be appropriate to observe that since the period of limitation is 60 days and that has expired pending writ petition, it is deemed appropriate to observe that if statutory appeal under section 69 of the Act, 2004 is being preferred by the petitioner, after due compliance of pre-deposit as mandated under section 69 - petition disposed off.

Summary

Issues:
Assessment under the Tripura Value Added Tax Act, 2004 for the years 2010-2011 to 2014-2015 challenged by a registered dealer. Failure to produce required documents and records during assessment. Justifiability of the writ petition under Article 226 of the Constitution without availing statutory remedy of appeal. Preliminary objection raised on the maintainability of the writ petition due to the existence of an alternative effective remedy of appeal under the Act, 2004.

Analysis:
The petitioner challenged the assessments made by the assessing authority under the Tripura Value Added Tax Act, 2004 for the years 2010-2011 to 2014-2015. The assessing authority pointed out irregularities in the books of accounts maintained by the petitioner, leading to the levy of interest and penalty. Despite opportunities given, the petitioner failed to produce the desired documentary evidence, including various registers and documents related to the contract awarded. The assessing authority determined the taxable turnover based on the actual transactions of taxable materials used in the works contract, leading to the impugned order of assessment dated March 31, 2016.

The petitioner filed a writ petition challenging the order of assessment, claiming it to be bad on multiple grounds. However, the petitioner did not avail the statutory remedy of appeal provided under section 69 of the Act, 2004. The respondents raised a preliminary objection on the maintainability of the writ petition due to the existence of an effective alternative remedy of appeal available under the Act, 2004. The petitioner's justification for not availing the statutory remedy was not adequately provided in the pleadings.

During the arguments, the petitioner's counsel contended that the assessing authority's order was without jurisdiction. However, the court opined that the correctness of the assessing authority's findings could be revisited through the statutory appeal process provided under the Act, 2004. The court emphasized the importance of exhausting the statutory remedies available under the law before seeking recourse through a writ petition under Article 226 of the Constitution.

The court, in line with established principles, held that the petitioner's case did not fall under the exceptions where the alternative statutory remedy would not operate as a bar to entertaining a writ petition. The court stressed the importance of adhering to the statutory appeal process and refraining from exercising inherent jurisdiction under Article 226 of the Constitution when an effective alternative remedy exists. The court disposed of the writ petition, advising the petitioner to avail the statutory remedy of appeal under the Act, 2004 within the prescribed limitations. The observations made by the court were intended for the disposal of the writ petition, emphasizing that the appellate/revisional authority should independently examine the records and decide on any appeal or revision in accordance with the law.