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2021 (10) TMI 316 - HC - VAT and Sales TaxMaintainability of petition - availability of alternative remedy of appeal - Validity of assessment order - HELD THAT - Considering the fact that a Coordinate Bench vide in FIS PAYMENT SOLNS. SERVICES INDIA PVT LTD THRU. AUTH. SIGNATOR VERSUS STATE OF U.P. THRU. ADDL. CHIEF SECY. TAX REGISTRATION ORS 2021 (10) TMI 62 - ALLAHABAD HIGH COURT , has dismissed the petitioner's petition bearing No. 20781 (MB) of 2021 against a similar order in similar circumstances relegating the petitioner to the remedy of appeal against the assessment order, we are of the opinion that the petitioner should prefer an appeal against the impugned order of assessment, but at the same time, the Tribunal should decide the Appeal No.02 of 2021, wherein it is said that the delay in filing the same has been condoned, within six weeks from the date a certified copy of this order is submitted before it. Parties are directed to cooperate in the matter. If an appeal is filed by the petitioner against the assessment order, the Appellate Authority is directed not to pass final order in appellate proceedings for a period of two months, so that the decision of the Tribunal is available for appropriate decision of the appeal - it is further provided that after a decision in the Appeal no. 2 of 2021 pending before the Tribunal, if the decision goes against the petitioner, it shall be open to the petitioner to approach this Court under Article 226 of the Constitution of India subject however to the discretion of this Court to entertain such writ petition or not to do so. Petition disposed off.
Issues:
Challenging assessment order under VAT Act, 2008; Interpretation of transaction as purchase or service under Constitution and VAT Act, 2008; Availability of alternative remedy of appeal; Rejection of application under Section 59 of VAT Act, 2008; Maintainability of writ petition; Double taxation concern; Efficacy of revision under Section 58 of VAT Act, 2008; Possibility of approaching High Court under Article 226 after Tribunal decision; Interim relief application in appellate proceedings. Analysis: The petitioner challenged an assessment order under the VAT Act, 2008, questioning whether a transaction involving supply of ATM Management Services constitutes a purchase or a service under the Constitution and relevant laws. Despite the availability of an appeal remedy, the petitioner sought a writ petition due to the constitutional and legal complexities involved, emphasizing the issue of potential double taxation. The petitioner's application under Section 59 of the VAT Act, 2008 was rejected earlier, leading to an appeal before the Tribunal, complicating the assessment process. The petitioner argued that the Appellate Authority cannot surpass the Commissioner's order under Section 59, making the appeal outcome predetermined. However, the respondent contended that the Tribunal should decide on the VAT levy issue, suggesting that the petitioner exhaust the appeal process before seeking further remedies. The High Court acknowledged the complexity of the matter but directed the petitioner to pursue the appeal against the assessment order while ensuring the Tribunal decides on the pending appeal expeditiously. The petitioner raised concerns about the efficacy of a revision under Section 58 of the VAT Act, 2008, highlighting the potential limitations and lack of substantial justice in that process. The High Court recognized the possibility of approaching the Court under Article 226 post the Tribunal's decision, subject to the Court's discretion. Additionally, the Court allowed for interim relief applications in the appellate proceedings against the assessment order, considering the circumstances and legal aspects involved. In conclusion, the High Court disposed of the petition, advising the petitioner to follow the appeal process diligently, while reserving the right to approach the Court if needed after the Tribunal's decision. The Court emphasized the importance of addressing the issue of double taxation and ensuring fair consideration of interim relief applications during the appellate proceedings.
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