2020 (8) TMI 160 - HC - VAT and Sales Tax

Maintainability of appeal - refusal to exercise discretion under Article 226 for reason of efficacious alternative statutory remedies - the original penalty order issued on the basis of an inspection was set aside in a statutory revision by the 3rd respondent and remanded for fresh consideration - HELD THAT - The 3rd respondent Commissioner would, on an appeal being filed, immediately constitute another Deputy Commissioner as the appellate authority for consideration of this particular appeal, if the very same person who passed the impugned order is now the Appellate Commissioner - The appellant would be entitled to raise that contention before the First Appellate Authority or the recovery Officer if any such recovery is attempted. Appeal disposed off.

Summary

Issues:
Refusal of Single Judge to exercise discretion under Article 226 for alternative statutory remedies, direction to file an appeal before the Appellate Tribunal, concern regarding the same person acting as both the original decision-maker and the appellate authority, remittance of 20% tax and its impact on recovery.

Refusal of Single Judge to exercise discretion under Article 226 for alternative statutory remedies:
The High Court reviewed the appeal against the Single Judge's decision to not exercise discretion under Article 226 due to the availability of alternative statutory remedies. The Court upheld the refusal, emphasizing that the original penalty order was set aside in a statutory revision and remanded for fresh consideration by the 3rd respondent. The Court ruled that the assessee must utilize the statutory remedies provided.

Direction to file an appeal before the Appellate Tribunal:
The appellant was directed to file an appeal before the First Appellate Authority Deputy Commissioner(Appeals), Ernakulam within one month. The Court clarified the proper authority for filing the appeal under the Kerala Value Added Tax Act, 2003, ensuring compliance with statutory procedures.

Concern regarding the same person acting as both original decision-maker and appellate authority:
The appellant expressed concern that the individual who issued the impugned order was now promoted and appointed as the appellate authority. In response, the Court directed the Commissioner to appoint another Deputy Commissioner as the appellate authority to avoid potential bias or conflict of interest in the appeal process.

Remittance of 20% tax and its impact on recovery:
The appellant had already remitted 20% of the tax, leading to a contention regarding recovery under the KVAT Act. The Court allowed the appellant to raise this issue before the First Appellate Authority or the recovery Officer, specifying that no recovery should be initiated for one month to facilitate the filing of the statutory appeal.

In conclusion, the Writ appeal was disposed of by the High Court, addressing the various concerns raised by the appellant and providing clear directions regarding the appeal process, appointment of the appellate authority, and the remittance of tax pending the appeal proceedings.