2023 (4) TMI 653 - HC - VAT and Sales Tax

Maintainability of petition - availability of alternative remedy of appeal - Violation of principles of natural justice - failure to follow the mandatory provisions of Section 21 of the Himachal Pradesh Value Added Tax Act 2005 - validity of Tax Demand Notice/Assessment Order - HELD THAT - A perusal of the provision of Section 45 of HP VAT Act shows that remedy of appeal is available against order assailed by way of instant petition subject however to the limitation provided therein. As per the above provision no appeal shall be entertained unless it is filed within sixty days from the date of communication of the order appealed against or such longer period as the Appellate Authority may allow for reasons to be recorded in writing. In the present case the Assessing Authority had passed the order on 30.12.2022. During the course of arguments the learned counsel for the petitioner on a query by this Court has submitted that the same was supplied to the petitioner on 30.12.2022 itself. It appears that since the petitioner had failed to file the appeal within the prescribed period of limitation therefore he has approached this Court by invoking the extraordinary writ jurisdiction to overcome the hurdle of limitation for filing the statutory appeal. The petitioner had statutory remedy available to it but had failed to avail the same within the stipulated period. Thus the instant petition is not bonafide. No reason whatsoever has been assigned for not availing the remedy of appeal by the petitioner. The writ petition is dismissed being not maintainable.

Summary

Issues:
The issues involved in the judgment are the arbitrary tax demand and penalties, failure to follow natural justice principles, availability of statutory remedy of appeal, and the maintainability of the writ petition under Article 226 of the Constitution of India.

Arbitrary Tax Demand and Penalties:
The petitioner challenged the order determining tax demand and penalties as arbitrary and against natural justice principles. The petitioner contended that the assessment was premature as it was done before the financial year ended, and documents were returned after the order was passed. It was argued that double taxation is impermissible under Section 6(1)(c) of the Himachal Pradesh Value Added Tax Act, 2005.

Availability of Statutory Remedy of Appeal:
The petitioner approached the High Court under Article 226 of the Constitution of India, bypassing the statutory remedy of appeal provided under Section 45 of the Act. The Act allows for appeal within a specified timeframe, failing which the petitioner can seek judicial intervention. The petitioner failed to file an appeal within the prescribed period, leading to the invocation of extraordinary writ jurisdiction.

Maintainability of the Writ Petition:
The Court examined the precedents cited by the petitioner, emphasizing exceptions to the rule of exhausting statutory remedies. However, the Court found that the petitioner did not have a bonafide reason for not availing the statutory remedy of appeal within the stipulated period. Consequently, the Court dismissed the writ petition as not maintainable, highlighting the importance of adhering to statutory procedures and timelines.

Separate Judgement by Judge:
No separate judgment was delivered by the judges in this case.