2022 (4) TMI 826 - HC - VAT and Sales Tax

Grant of leave to the revenue to file a CAN application challenging the orders of the Board - Section 8 of the West Bengal Taxation Tribunal Act, 1987 - HELD THAT - Regulation 16(1) of the Regulations, provides that any person or authority, who is or has been a party to a proceeding may make an application for grant, extension, discharge, variation or setting aside or interim order pending disposal of the proceeding - Clause (a) of Regulations 16(1) provides the nature of relief which may be sought for by a party and may be passed by the Tribunal on a miscellaneous application being filed. The said Regulation contains an expression pending disposal of the proceeding which shall be the guiding factor for deciding the nature of the relief which may be passed by the tribunal on a Miscellaneous application. On a plain reading of the said Regulation it is evident that the nature of the relief contemplated under clause (a) of Regulation 16(1) is a relief which is other than a final relief as the various mode of the relief specifically described in the said Regulation is followed by the aforesaid expression. The State revenue authority sought to quash the order dated August 10, 2018 passed by the Board, which is an order amenable to challenge under Section 8 of the Act. The relief sought for in the said application is final in nature for which recourse to Regulation 16 is not permissible for the reasons as stated hereinbefore. Thus, this court is of the considered view that the miscellaneous application being CAN 28 of 2022 was not maintainable and the grant of leave by the tribunal to file a miscellaneous application without considering its maintainability was improper. This Court is of the considered view that a challenge against an order passed by the Revisional Board ought to have been made by filing an application under the relevant provisions of the West Bengal Taxation Tribunal Act and not by resorting to Regulation 16 of the said Regulations as contended by the learned Advocate for the State - this Court holds that the learned Tribunal erred in granting leave to the revenue to file the application being CAN 28 of 2022. The leave granted to the revenue vide order dated December 20, 2021 is set aside and quashed. The writ petition stands disposed of.

Summary

Issues:
Challenge to order of Three Member Bench - I, West Bengal Taxation Tribunal granting leave to revenue to file a CAN application challenging Board's orders.

Analysis:
The petitioners challenged an order passed by the Three Member Bench of the West Bengal Taxation Tribunal granting leave to the revenue to file a CAN application challenging the orders of the Board. The petitioners contended that the revenue authority, seeking to challenge the Board's order, cannot do so by filing a Miscellaneous application but must file an application under Section 8 of the West Bengal Taxation Tribunal Act. The State argued that Regulation 16 of the Regulations allows for setting aside an order passed by an authority under the specified Act. The Court examined Regulation 16(1) and emphasized that it permits parties to seek relief during the pendency of proceedings, which is interim in nature.

The Court interpreted the term "setting aside" in Regulation 16(1) to mean annul or vacate, indicating that a party can file a miscellaneous application seeking to annul or vacate an order, with the relief being interim in nature. Section 8 of the Act empowers the tribunal to entertain challenges against orders passed by authorities under State Acts. The Court held that the relief sought by the revenue, to quash the Board's order, is final in nature and cannot be pursued through Regulation 16, as it is inconsistent with the Act. Therefore, the miscellaneous application filed by the revenue was deemed not maintainable, and the grant of leave by the tribunal was improper.

The Court concluded that challenges against orders of the Revisional Board should be made under the relevant provisions of the West Bengal Taxation Tribunal Act, not through Regulation 16 of the Regulations. Consequently, the Court set aside and quashed the leave granted to the revenue to file the application, dismissing the application as not maintainable. The judgment clarified that this decision does not prevent the parties from taking appropriate legal action if advised to do so. Finally, the writ petition was disposed of with no costs awarded, and parties were directed to receive a certified copy of the order promptly upon fulfilling legal requirements.