2022 (3) TMI 98 - HC - VAT and Sales Tax

Maintainability of petition - availability of alternative remedy - assessment order has been passed by the Assessing Officer/Deputy Commissioner in compliance of the order passed by this Court - HELD THAT - This Court merely directed the said authority to expedite and take up the matter, if possible, on day-to-day basis and complete the proceedings within a period of two weeks thereafter. In the selfsame order, it was made clear that the order to be passed by the said authority will always be subject to further appeals or revisions, as is provided under law. The apprehension of the petitioner is more illusory than real, that the Appellate Authority would not decide the matter on merits. Since the appeal against the order sought to be filed only within 60 days as per Section 45(4) of the Himachal Pradesh Value Added Tax Act, 2005 or such longer period as the appellate authority may allow, for the reasons to be recorded in writing, the present petition is disposed off by requiring the petitioner to file appeal within 30 days from today.

Summary

Issues:
Challenge to order of Deputy Commissioner State Taxes & Excise Una, Appealability under Section 45 of Himachal Pradesh Value Added Tax Act, 2005, Illusory remedy of appeal, Timelines for filing appeal and decision by Appellate Authority.

Challenge to Order of Deputy Commissioner State Taxes & Excise Una:
The petitioner challenged the order dated 29.11.2021 by the Deputy Commissioner State Taxes & Excise Una, which was stayed by the High Court. Respondent No.2 argued that the order constituted a fresh assessment order due to a remand by the Revisional Authority. The High Court clarified that the order to be passed by the authority would be subject to further appeals or revisions as per law. The High Court dismissed the petitioner's apprehension that the Appellate Authority would not decide the matter on merits, emphasizing that the remedy of appeal was not illusory.

Appealability under Section 45 of Himachal Pradesh Value Added Tax Act, 2005:
The learned Senior Counsel for respondent No.2 contended that the impugned order was appealable under Section 45 of the Act, despite the assessment order pertaining to earlier years. The petitioner argued that since the assessment order was passed in compliance with the High Court's directive, the remedy of appeal would be illusory. The High Court rejected this argument, emphasizing that the order would be subject to further appeals or revisions as provided by law.

Illusory Remedy of Appeal:
The petitioner claimed that the remedy of appeal would be illusory due to the compliance of the assessment order with the High Court's directive. However, the High Court dismissed this claim, stating that the order would be subject to further appeals or revisions as per the law. The High Court directed the petitioner to file an appeal within 30 days, with the Appellate Authority required to hear and decide the appeal within three months from the filing date.

Timelines for Filing Appeal and Decision by Appellate Authority:
The High Court directed the petitioner to file an appeal within 30 days and mandated the Appellate Authority to hear and decide the appeal within three months from the filing date. The interim order passed by the High Court would remain operative for the next 15 days, and the Appellate Authority was granted discretion to pass further interim orders as deemed necessary. Pending applications were also disposed of by the Court.