2016 (11) TMI 1197 - HC - VAT and Sales Tax

Validity of ex parte assessment order - revision application - on account of the fact that inspite of notice, the assessee petitioner herein did not appear on 28/07/15, 16/09/15 and 17/12/15 and by giving a justification for nonappearance, the writ petition has been filed seeking review of the order and its setting aside i.e. Annexure P-1 rejecting the application under Section 34 of the M. P. V.A.T. Act - Held that - against the order of assessment, a remedy of appeal and second appeal is available. Petitioner should take recourse to the said remedy and the grounds raised in this writ petition are left open to be considered and decided by the appellate authority on an appeal being filed along with an appropriate application for condonation of delay - petition disposed off - decided against petitioner.

Summary

Issues:
Challenge to ex parte assessment order under Article 226 and 227 of the Constitution; Availability of statutory right of appeal; Efficacy of appeal remedy due to pre-deposit requirement.

Analysis:
The petitioner filed a writ petition challenging the ex parte assessment order issued by the Assessing Officer, seeking review and setting aside of the order. The Assessing Officer passed the ex parte order due to the petitioner's nonappearance despite notices on multiple occasions. The petitioner contended that the order rejecting the application under Section 34 of the M.P. V.A.T. Act should be reviewed and set aside.

During the proceedings, a preliminary objection was raised by Shri Samdarshi Tiwari, arguing that the petitioner has a statutory right of appeal available first before the appellate authority and then before the appellate board. It was emphasized that the grounds of assessment and exemption claimed could be appropriately addressed by the appellate authorities. Therefore, the direct approach to the High Court through a writ petition was deemed improper by Shri Samdarshi Tiwari.

On the other hand, Shri Mukesh Agrawal, representing the petitioner, argued that the requirement of making a pre-deposit for the appeal renders the appeal remedy ineffective in this case. However, the Court did not agree with this argument and pointed out that the petitioner has the option to appeal against the assessment order and further to a second appeal. The Court advised the petitioner to pursue the statutory remedy of appeal, allowing the grounds raised in the writ petition to be considered and decided by the appellate authority upon filing an appeal along with an appropriate application for condonation of delay.

In conclusion, the Court disposed of the petition by directing the petitioner to avail the remedy of appeal provided against the assessment order, leaving the grounds raised in the writ petition open for consideration by the appellate authority upon filing the appeal with the necessary application for condonation of delay.