2019 (2) TMI 249 - HC - VAT and Sales Tax

Maintainability of petitions - availability of an efficacious alternative remedy of appeal - Jurisdiction - order passed by the Joint Commissioner, Commercial Taxes exercising the revisional powers under the U.P. Value Added Tax Act, 2008 - applicability of time limitation - Held that - Even if the provisions of the limitation Act, 2005 are not applicable to such appeals the principles contained in Section 14 thereof would certainly apply, meaning thereby, as the petitioner has been bonafide pursuing these writ petitions against the impugned orders on the grounds mentioned therein the period of pendency of these writ petitions before this Court would be excluded in calculating the limitation for filing the appeal against the impugned orders under the relevant statute. If such an appeal is filed within a period of 15 days the same shall be decided with expedition, say, within the next six months. These writ petitions are dismissed on the ground of availability of alternative remedy.

Summary

Issues:
Challenge to orders under U.P. Value Added Tax Act, 2008 and recovery of Tax jurisdiction, Repeal of VAT Act, 2008 by Constitution (One Hundred and First Amendment) Act, 2016, Applicability of saving clause in GST enactments, Availability of alternative remedy of appeal.

Analysis:
The petitioner challenged orders under the U.P. Value Added Tax Act, 2008, passed by the Joint Commissioner, Commercial Taxes, and subsequent tax recovery. The petitioner argued that the VAT Act, 2008 was repealed by the Constitution (One Hundred and First Amendment) Act, 2016, making the orders passed without jurisdiction. However, the High Court found that the Act, 2016 did not expressly repeal the VAT Act, 2008 and allowed such Acts to continue until amended or repealed by a competent authority or until one year from the commencement of the Act, whichever is earlier.

Regarding the applicability of the saving clause in GST enactments, the Court noted that the VAT Act, 2008 continued in force under Section 19 of the Act, 2016, and the saving clause in the GST enactments provided applicable savings. The petitioner's argument that the VAT Act, 2008 was impliedly repealed due to the Amendment Act was rejected by the Court.

Citing a previous judgment, the Court emphasized the availability of an alternative remedy of appeal under the taxing statute, which is a complete code by itself. The Court declined to express an opinion on the saving clause's applicability, highlighting the need to follow the statutory remedy of appeal. The petitioner's request for protection due to expired limitation for appeal was considered, and the principles of the Limitation Act, 2005 were applied to exclude the pendency period of the writ petitions for calculating the appeal limitation.

Ultimately, the Court dismissed the writ petitions on the ground of the availability of an alternative remedy through appeal. The petitioner was advised to raise all pleas before the Appellate Authority as per the law, ensuring a fair consideration of all arguments in the appeal process.