9911796707
TMI Blog2000 (12) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... return and issued the impugned notice for levy of tax, interest and penalty. 3.. The petitioner has challenged the proposed levy of tax, interest and penalty on the ground that the State Government does not have the jurisdiction to levy tax on the paddy purchased by it because the rice milled out of it was exported out of India and such transaction is exempt from payment of tax in view of the provisions contained in sections 5(3) and 15(ca) of the 1956 Act. 4.. In the written statement filed on behalf of the respondents, a preliminary objection has been raised to the maintainability of the writ petition on the ground that the petitioner has failed to avail of the statutory alternative remedy of appeal under section 39 of the 1973 Act. They have averred that the petitioner did not pay purchase tax on paddy for the years 1996-97, 1997-98, 1998-99, 1999-2000 and, therefore, notices were issued to it for provisional assessment under section 28-B of the 1973 Act and after considering the entire matter, respondent No. 2 passed order, annexure R-1, dated July 7, 2000 for levy of tax. 5.. Shri K.L. Goyal, learned counsel for the petitioner, argued that the remedy of appeal available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milled out of such paddy and the quantity of rice exported out of India and these issues cannot be determined by the High Court under article 226 of the Constitution of India. With regard to the order passed by the High Court in Veerumal Monga's case [2001] 123 STC 158 (P H); (2000) 16 P H Taxes 304, Shri Surya Kant submitted that the same cannot be treated as a precedent and applied to the facts of each and every case and this position may be clarified by the Court. 7.. We have given serious thought to the respective submissions and have carefully gone through the record. Admittedly, during the pendency of the writ petition, respondent No. 2 passed order (annexure R-1) dated July 7, 2000 for levy of purchase tax amounting to Rs. 3,40,999. That order is appealable under section 39(1) of the 1973 Act, but no appeal has so far been filed by the petitioner. According to Shri K.L. Goyal, the remedy of appeal available to the petitioner under section 39(1) of the 1973 Act cannot be treated as an effective alternative remedy because the deposit of the amount of tax is a condition precedent to the entertainment of appeal. He further submitted that in view of the observations made by thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood grounds therefor". 10.. In Titaghur Paper Mills Co. Ltd. v. State of Orissa [1983] 53 STC 315; AIR 1983 SC 603, the Supreme Court upheld the order passed by the Orissa High Court dismissing the writ petition filed by the appellant on the ground of availability of an alternative remedy. Some of the observations made in that case are extracted below: "Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the prescribed authority under sub-section (1) of section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under article 226 of the Constitution. It is now well-recognis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Hari Om Industry (C.W.P. No. 17498 of 1999 decided on May 8, 2000) a division Bench of this Court refused to entertain the petition filed for quashing of the order passed by the Additional Excise and Taxation Commissioner-cum-Revisional Authority under section 40 of the 1973 Act on the ground that remedy of appeal is available to the petitioner under section 39 of the 1973 Act. The court also rejected the argument of the petitioner that the remedy of appeal cannot be treated as an effective alternative remedy because the Tribunal has already taken an adverse view in other similar cases. Some of the observations made in that order are reproduced below: "We are unable to accept the contention of the learned counsel. The decision given by the Tribunal in the case of some other assessee is not a precedent so as to bind the authorities below and that the same would be binding only between the parties and it will be open to the petitioner in this case to contend to the contrary before the Tribunal. It will be equally open to the Tribunal to take a view different from the one taken in the earlier case and there is no question of that view being binding on the Tribunal in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in view of the order passed by this Court in Veerumal Monga's case [2001] 123 STC 158 (P H); (2000) 16 P H Taxes 304, the appellate authority and the Tribunal may not be able to objectively decide the petitioner's plea, must be held as mis-conceived. A careful reading of the order passed in Veerumal Monga's case [2001] 123 STC 158 (P H); (2000) 16 P H Taxes 304, shows that after taking into consideration the facts of that particular case, the High Court had held that the transaction involving purchase of paddy by the petitioner did not fall within the ambit of section 5(3) read with section 15(ca) of the 1956 Act. Therefore, the said decision cannot be treated as laying down an absolute proposition that all transaction involving purchases of paddy would be subject to the purchase tax irrespective of the use thereof and in our considered view, the appellate authority and the Tribunal are bound to independently consider the facts of each case and then decide whether or not the dealer is entitled to get exemption under section 5(3) read with section 15(ca) of the 1956 Act. 17.. Before concluding, we may refer to the decisions relied upon by Shri K.L. Goyal. 18.. In State of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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