2022 (9) TMI 531 - HC - VAT and Sales Tax

Maintainability of petition - petitioner had remedy of filing an application before the Tribunal seeking reference of question(s) of law - 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 orders impugned in the writ petition. However, there are merit in the argument raised by Mr. Sameer Qayoom, learned 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 court for the purpose of calculating limitation.

Detailed Analysis:

1. Maintainability of the Writ Petition:
The petitioner filed a writ petition challenging orders dated 03.02.2011 by the Assessing Authority, 28.11.2011 by the Appellate Authority, and 14.10.2014 by the J&K State Sales Tax (Appellate) Tribunal. The respondent 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 for referring questions of law to the High Court. The court noted that the writ petition did not contain any questions of law as required.

2. Availability of an Alternative Remedy:
The court emphasized the availability of an alternative remedy under Section 12-D of the Act, which allows an aggrieved party to apply to the Tribunal to refer questions of law to the High Court. The relevant provisions of Section 12-D were reproduced, highlighting the procedural steps and timelines for seeking such a reference. The court referred to a previous Division Bench decision (OWP No. 1414/2012) that dismissed a similar writ petition as not maintainable, directing the petitioner to approach the Tribunal first.

3. Exclusion of the Period Spent Before the Court for the Purpose of Calculating Limitation:
The court agreed with the petitioner's counsel that the period spent before the court should be excluded from the limitation period for filing the application before the Tribunal. The court directed that if the petitioner files the application within three weeks, the time spent in the present proceedings would be excluded from the limitation period. The court clarified that no opinion was expressed on the merits of the questions raised in the writ petition, and the Tribunal should proceed uninfluenced by any observations made in the judgment.

Conclusion:
The court sustained the preliminary objection regarding the maintainability of the writ petition due to the availability of an effective alternative remedy. The writ petition was dismissed on these grounds, with a directive to the petitioner to file the appropriate application before the Tribunal within three weeks, excluding the period spent before the court from the limitation period. The court made it clear that the Tribunal should not be influenced by any observations made in the present judgment.