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TMI Blog2004 (11) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... agement of Certain Tea Units) Ordinance, 1986. The management of properties of the tea garden was also taken over by the Government through Tripura Tea Development Corporation and since November 13, 1986 till July 11, 1992, the tea garden was under the management and control of the Government of Tripura through the said corporation. According to the petitioners/appellants, during the period since 1984 till 1992, there had been no assessment of sales tax for reasons not known to them. It was only in the later part of 1992, the Superintendent of Taxes, Charge-IV, Agartala took up the impugned assessment proceedings against the petitioners/appellants tea garden for the period from March 31, 1985 to March 31, 1993. By a single assessment order dated July 12, 1985 assessment of Rs. 1,09,375; Rs. 1,09,375 and Rs. 68,359 was made pertaining to the years 1984-85, 1985-86 and 1986-87 respectively. Being dissatisfied with such assessment made by the Superintendent of Taxes, the petitioners/appellants preferred three appeals before the Additional Commissioner of Taxes, Government of Tripura, Agartala. The appellate authority by its order dated August 7, 1995 passed in the said appeals, viz., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment was made on conjectures and surmises and the orders passed by the appellate and revisional authority insisting for payment of 50 per cent of the amount assessed were palpably illegal. As regards the jurisdiction of this court under article 226 of the Constitution of India, when the petitioner/appellant themselves had approached the statutory authorities, he submitted that unless those alternative remedies were exhausted, the writ petitions might not have been entertained. Referring to the decisions of the apex court as reported in Madras Port Trust v. Hymanshu International AIR 1979 SC 1144, Collector, Land Acquisition v. Mst. Katiji [1987] 66 STC 228 (SC); AIR 1987 SC 1353, and M.S. Grewal v. Deepchand Sood AIR 2001 SCW 3430, he submitted that technicality cannot and should not outweigh the cause of justice. Further submissions made by Mr. Das was that the very provision under which deposit of 50 per cent of the assessed amount was insisted by the appellate authority was put to challenge and the said provisions were struck down by this court in the reported judgment in Monoranjan Chakraborty v. State of Tripura [1991] 81 STC 291 (Gauhati); [1990] 1 GLR 147. Although ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot entertained and that there is no infirmity in the impugned orders. He further submitted in reference to the decision of the apex court as reported in State of Tripura v. Manoranjan Chakraborty [2001] 122 STC 594; [2001] 10 SCC 740 that the aforesaid appeal preferred by the State of Tripura against a decision of this court has since been allowed upholding the aforesaid provisions under which at least 50 per cent of the assessed amount is required to be deposited before entertaining an appeal against an order of assessment. He further submitted that in view of the stay order granted by the apex court in that appeal which was in operation till the aforesaid final decision, there was nothing wrong on the part of the respondents in making the assessment pertaining to the aforesaid years and insisting for 50 per cent deposit of the said amount under the provisions of section 20 of the Act. We have considered the rival submissions made by the learned counsel for the parties and have perused the materials available on records. We have also meticulously gone through the judgment of the learned single Judge. There is no dispute that a party aggrieved by an order of assessment or penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absolute bar to invoke writ jurisdiction. In the instant case, the appellant in fact wanted to exhaust the alternative statutory remedy by preferring an appeal under section 20 of the aforesaid Act. However, when the appellate authority by the impugned order dated August 7, 1995 insisted for statutory payment for 50 per cent of the assessed amount under section 20(1) of the aforesaid Act, the petitioner/appellant preferred revision application before the revisional authority which was also a remedy available under the Act. The revisional authority by the impugned order dated November 4, 1995 found nothing wrong with the appellate order in insisting payment of 50 per cent of the amount in question. The revisional authority extended the time-limit fixed by the appellate authority for making the deposits. However, the petitioner/appellant instead of complying with the same filed the aforesaid writ petitions challenging the legality and validity of the assessment order, appellate order and the revisional order. The grounds towards assailing the assessment order have been indicated above. The moot question involved in these writ appeals is whether the appellate authority committed any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence to the other view. As per the provisions of section 20 of the aforesaid Act, depositing at least 50 per cent of the amount assessed is the rule and dispensation thereof cannot be made. Even in case of ordering for 50 per cent deposit instead of depositing the entire amount towards entertaining the appeal, the appellate authority will have to form an opinion and assign reasons thereof. Whatever may be the ground of attack against the order of assessment, the petitioner/appellant is bound to deposit the amount in question as contemplated under section 20(1) of the Act. The amount insisted upon by the appellate authority as per statutory requirement will have to be deposited first as a rule before the appeal could be entertained. The apex court in the case of Assistant Collector of Central Excise v. Dunlop India Ltd. as reported in [1985] 154 ITR 172 (SC); [1985] 1 SCC 260 deprecating the practice of granting interim orders in revenue matters observed as follows: "Now coming to the facts of the present case, the respondent, Dunlop India Limited is a manufacturer of tyres, tubes and various other rubber products. By a notification dated April 6, 1984 issued by the Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to section 39 of the Haryana General Sales Tax Act, 1973 under which also as in the instant case the assessee is required to deposit the tax assessed towards entertaining an appeal, held that the object of section 39 of the Act is to ensure the deposit of amount claimed from an assessee in case of an appeal filed against the tax demanded. It exclusively quoted with approval the considerations made by the Full Bench of the Punjab and Haryana High Court in Emerald International Ltd. [2001] 122 STC 382 and held that where matters of public revenue are concerned, it is of utmost importance to realise that interim orders ought not to be granted merely because a prima facie case has been shown. In the instant case also, it is the case of the petitioner/appellant that there is a prima facie case in their favour and irrespective of the statutory remedies, which is the petitioner/appellant wanted to avail, the writ court should examine the matter on merit in exercise of its powers under article 226 of the Constitution of India. The Full Bench of the Punjab and Haryana High Court inter alia observed: "The High Court in exercise of its jurisdiction under article 226 of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd 'entertain' in relation to the filing of an appeal, as is also the mandate of sub-section (5) of section 39 of the Act this court in Lakshmiratan Engineering Works Ltd. v. Assistant Commissioner (Judicial) I, Sales Tax [1968] 21 STC 154 (SC); AIR 1968 SC 488 observed: 'To begin with it must be noticed that the proviso merely requires that the appeal shall not be entertained unless it is accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due. A question thus arises what is the meaning of the word "entertained" in this context? Does it mean that no appeal shall be received or filed or does it mean that no appeal shall be admitted or heard and disposed of unless satisfactory proof is available? The dictionary meaning of the word "entertain' was brought to our notice by the parties, and both sides agreed that it means either "to deal with or admit to consideration". We are also of the same opinion. The question, therefore, is at what stage can the appeal be said to be entertained for the purpose of the application of the proviso? Is it "entertain" when it is filed or is it "en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the memorandum of appeal is not sound. Even under Order 41 of the Code of Civil Procedure, the expressions "appeal" and "memorandum of appeal" are used to denote two distinct things. In Wharton's aw Lexicon, the word "appeal" is defined as the judicial examination of the decision by a higher court of the decision of an inferior court. The appeal is the judicial examination; the memorandum of appeal contains the grounds on which the judicial examination is invited. For purposes of limitation and for purposes of the rules of the court it is required that a written memorandum of appeal shall be filed. When the proviso speaks of the entertainment of the appeal, it means that the appeal such as was filed will not be admitted to consideration unless there is satisfactory proof available of the making of the deposit of admitted tax.' 9.. The object of sub-section (5) of section 39 of the Act is to ensure the deposit of amount claimed from an assessee in case of an appeal filed against the tax demanded. However, power is given to the Appellate Tribunal to relieve him from the rigor of above restriction under the circumstances spelt out in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnishing of the bank guarantee by the company. Merely because the Tribunal had insisted upon the payment of the amount in terms of proviso to sub-section (5) of section 39 of the Act, should not have annoyed the court while granting the relief in exercise of its powers under article 226 of the Constitution. The impugned order being contrary to settled principles of law cannot be sustained and is accordingly set aside." In the case of Vijay Power Generators Ltd. v. Commissioner of Sales Tax as reported in [2000] 120 STC 377 a division Bench of the Delhi High Court under similar circumstances, while refusing to interfere with the order passed by the Commissioner of Sales Tax towards depositing the amount in question, held that the right of appeal is a creation of statute but in exercise of such right, there is no inherent or constitutional right to file an appeal. Referring to the decisions of the apex court in Anant Mills Co. Ltd. v. State of Gujarat as reported in AIR 1975 SC 1234 and State of Bombay v. Supreme General Films Exchange Ltd. as reported in AIR 1960 SC 980, held that Legislature can, while granting right of appeal lay down a condition for deposit of tax as it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the statutory provisions under which they were bound to deposit the amount insisted by the appellate authority preferred the revision application before the revisional authority. The said authority rightly rejected the revision application upholding the order of the appellate authority. It was under those circumstances the writ petitions were filed making challenge to all the three orders, i.e., the assessment order, the appellate order and the revisional order. Thus the cause of action for filing the writ petitions had arisen for the petitioner/appellant only after passing the orders by the appellate and the revisional authority. The petitioner/appellant were fully aware about the statutory alternative remedy and in fact wanted to exhaust the same, but refused to fulfil the pre-conditions towards exhausting the said remedy. Coming to the writ court and more particularly in the present set of appeal, the petitioner/ appellant have even disowned their persuasion for the alternative remedy. A submission was made, as pointed out above, that there was no infirmity on the part of the appellate and revisional authority in passing the impugned orders, however, it was argued that inde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Rajureshwar Associates [2004] 6 SCC 362, the apex court upholding the order of the High Court upon noticing the fact that the legality of the order passed by the Collector was the subject-matter of challenge in another proceeding held that the same issue could not be adjudicated in a petition under article 226 of the Constitution of India. In the instant case also, the petitioner/appellant themselves having initiated the appellate proceeding, could not have invoked the writ jurisdiction, merely because the appellate authority insisted for compliance of the statutory requirements towards entertaining the appeal. The petitioner/appellant will get all the opportunity to explain their case before the appellate authority. On their failure before the said authority they will have another channel open by way of preferring revision application before the revisional authority. Thereafter also they will have other remedies open. Merely because the petitioner/appellant feel that they have a good case on merit, they cannot bypass the statutory alternative remedy by way of invoking the writ jurisdiction. In fact, they had invoked the jurisdiction of the statutory authority and it w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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