2022 (6) TMI 654 - HC - VAT and Sales Tax

Maintainability of petition - availability of alternative remedy of appeal - exclusion of period spent by the petitioner before this Court for the purposes of calculating the period of limitation before the Tribunal - HELD THAT - The preliminary objection raised by the learned Advocate General, has to be sustained and the writ petition deserves to be dismissed on the ground of availability of an effective alternative remedy against the order impugned in the writ petition. However, there are merit in the argument raised by Mr. Z.A. Qureshi, learned senior counsel representing the petitioner on the issue that the period spent by the petitioner before this court be excluded for the purpose of calculation of limitation for filing the appropriate application before the Tribunal. Hence, it is directed that, in case the petitioner files the application(s) before the Tribunal seeking reference of question(s) of law arising out of the order passed by the Tribunal within 3 weeks from today, the period spent by the petitioner before this court in the present proceedings, shall be excluded, while calculating the period of limitation for the same. Petition disposed off.

Summary

Issues Involved:
1. Maintainability of the writ petition.
2. Availability of an alternative remedy.
3. Exclusion of the period spent before the High Court for limitation purposes.

Detailed Analysis:

1. Maintainability of the Writ Petition:
The petitioner filed a writ petition challenging the order dated 7th December 2017 passed by the J & K State Sales Tax (Appellate) Tribunal. The writ petition did not contain any specific question(s) of law. The learned Advocate General raised a preliminary objection regarding the maintainability of the writ petition, arguing that the petitioner had an alternative remedy of filing an application before the Tribunal to refer the question(s) of law to the High Court. The court noted that the issue involved in the writ petition had already been decided by a Division Bench in a previous case (OWP No. 1414/2012), where it was held that the writ petition was not maintainable and directed the petitioner to file an application before the Tribunal.

2. Availability of an Alternative Remedy:
The court examined the relevant provisions of Section 12-D of the Act, which provides the procedure for referring questions of law from the Tribunal to the High Court. The court noted that the petitioner had bypassed the alternative remedy available under Section 12-D by directly approaching the High Court. The court emphasized that as per the scheme of the Act, the petitioner should have first filed an application before the Tribunal seeking reference of the question(s) of law arising out of the Tribunal's order. The court further stated that even if the Tribunal refuses to refer the question(s) of law, the petitioner could then approach the High Court for a direction to the Tribunal.

3. Exclusion of the Period Spent Before the High Court for Limitation Purposes:
The court acknowledged the argument raised by the petitioner's counsel that the period spent before the High Court should be excluded for the purpose of calculating the limitation period for filing the application before the Tribunal. The court directed that if the petitioner files the application(s) before the Tribunal within three weeks from the date of the judgment, the period spent before the High Court would be excluded while calculating the limitation period. The court clarified that it had not expressed any opinion on the merits of the questions raised in the writ petition and that the Tribunal should proceed uninfluenced by any observations made in the judgment.

Conclusion:
The court sustained the preliminary objection raised by the learned Advocate General regarding the maintainability of the writ petition due to the availability of an effective alternative remedy. The writ petition was dismissed on this ground. However, the court provided relief to the petitioner by allowing the exclusion of the period spent before the High Court for the purpose of calculating the limitation period for filing the appropriate application before the Tribunal. The writ petition was disposed of accordingly.