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TMI Blog2014 (9) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... the petroleum products. Based on the registration certificate issued in favour of the petitioner, it has been running a petroleum bunk and reselling the petroleum products in Puducherry. The petitioner, as the registered dealer of the petroleum products, has been acting as an agent of the Government by collecting the tax from the consumer public on the price of the petroleum products. It has been filing the returns and remitting the tax collected by it, before the assessing authority concerned, regularly. While so, certain discrepancies had been found in the orders of assessment for the assessment years 2004-05 to 2006-07. 4. It has been stated in the said assessment orders that there were certain differences noted in the turnover reported in the petitioner's returns and in the supply vouchers provided by the Indian Oil Corporation. Further, with regard to the sale of lubricants, the second sale of such lubricants had been treated as first sale, by the authorities concerned. In such circumstances, the petitioner had challenged the said orders before the appellate authority concerned. It had been further stated that the returns filed by the petitioner are correct and the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner, the respondent had renewed the registration of the petitioner in the month of June, 2010, thereby, impliedly revoking the cancellation of the registration of the petitioner. Thereafter, the petitioner had been granted renewal of the registration, for the year 2010-2011, on June 27, 2010, by the Deputy Commercial Tax Officer, Puducherry. In such circumstances, the petitioner had submitted before this court that, in view of the renewal of the registration of the petitioner, by the respondent, the writ petition in W.P. No. 3904 of 2010, has become infructuous. Recording the submissions, made on behalf of the petitioner, this court, by an order, dated July 14, 2010, had dismissed the writ petition, in W.P. No. 3904 of 2010, as infructuous. Consequently, the connected miscellaneous petition, in M.P. No. 1 of 2010, had been closed. Accordingly, this court had passed the order, on July 14, 2010, dismissing the writ petition, in W.P. No. 3904 of 2010, as infructuous. 8. After the dismissal of the writ petition by this court, the respondent, by its order, dated August 27, 2010, had stated that the petitioner cannot claim itself as a registered dealer, under the provisions of the Puduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner, is false. The respondent does not have the jurisdiction to decide about the alleged arrears of tax. He cannot act as an assessing authority. Even if there are some arrears in the payment of tax, by the petitioner, it is open to the authority concerned to initiate appropriate action against the petitioner for the recovery of the same. However, the respondent does not have the power to stop the petitioner from carrying on its business. The respondent cannot claim that the writ petition is not maintainable due to the availability of an alternative remedy, under section 45 of the Puducherry Value Added Tax Act, 2007, to the petitioner, as the impugned order passed by the respondent is contrary to the principles of natural justice and the relevant provisions of law. The impugned order of the respondent is infringing the provisions contained in articles 19, 21, 265 and 300 of the Constitution of India. The respondent cannot curb the business activities of the petitioner for non-payment of the disputed tax, especially, when the petitioner had paid huge sums of money as the admitted tax. 12. The learned counsel appearing on behalf of the petitioner had also submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistration certificate of the petitioner, in M.P. No. 1 of 2010, W.P. No. 3904 of 2010. In view of the pendency of the said writ petition and in view of the order of interim stay granted by this court, the respondent had renewed the registration of the petitioner for the year 2010-11, on June 27, 2010. Subsequently, for reasons best known to the petitioner the writ petition, in W.P. No. 3904 of 2010, it had been submitted before this court that the writ petition has become infructuous. In view of the submissions made by the learned counsel appearing on behalf of the petitioner, this court had dismissed the writ petition, as infructuous, by its order, dated July 14, 2010. Consequently, the connected miscellaneous petition had also been closed. Thereafter, the petitioner had made a request for the renewal of its registration, for the year 2011-12. In such circumstances, the respondent had issued the order, dated August 27, 2010, stating that the earlier order, dated February 23, 2010, cancelling the registration certificate granted in favour of the petitioner is in operation. Hence, the petitioner cannot claim itself to be a registered dealer under the provisions of the Puducherry Va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termination on merits, even assuming that the writ petition filed by him in the High Court was maintainable. For this reason, it is not necessary to examine the correctness of the High Court's view that the writ petition was not maintainable. The dismissal of the appeal by this court, is, therefore, not to be construed as an expression of any opinion on the merits of the view taken by the High Court on the question of maintainability of the writ petition." 19.2. In Shiv Kumar Sharma v. Santosh Kumari [2007] 8 SCC 600, the Supreme Court had held as follows: "26. In England, the court of equity exercises jurisdiction in equity. The courts of India do not possess any such exclusive jurisdiction. The courts in India exercise jurisdiction both in equity as well as law but exercise of equity jurisdiction is always subject to the provisions of law. If exercise of equity jurisdiction would violate the express provisions contained in law, the same cannot be done. Equity jurisdiction can be exercised only when no law operates in the field. 27. A court of law cannot exercise its discretionary jurisdiction de hors the statutory law. Its discretion must be exercised in terms of the exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33. It is thus clear that though the appellant-company had approached the High Court under article 226 of the Constitution, it had not candidly stated all the facts to the court. The High Court is exercising discretionary and extraordinary jurisdiction under article 226 of the Constitution. Over and above, a court of law is also a court of equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter. . . . 35. It is well-settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a writ court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be set aside." 19.6 In Board of Director, Himachal Pradesh Transport Corporation v. K.C. Rahi [2008] 11 SCC 502, the Supreme Court had held as follows: "8. In the instant case we have been taken through various documents and also from the representation dated October 19, 1993 filed by the respondent himself it would clearly show that he knew that a departmental enquiry was initiated against him yet he chose not to participate in the enquiry proceedings at his own risk. In such event plea of principle of natural justice is deemed to have been waived and he is estopped from raising the question of non-compliance with principles of natural justice. In the representation submitted by him on October 19, 1993, the subject itself reads 'DEPARTMENTAL ENQUIRIES'. It is stated at the Bar that the respondent is a law graduate, therefore, he cannot take a plea of ignorance of law. Ignorance of law is no excuse much less by a person who is a law graduate himself." 19.7. In Commissioner of Customs & Central Excise v. Hongo India (P) Ltd. [2009] 24 VST 298 (SC); [2010] 2 GSTR 305 (SC); [2009] 5 SCC 791, the Supreme Court had held as follows (page 307 in 24 VST): "30. In the earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty or fulfilment of some other conditions for entertaining the appeal (see para 13 at SCC page 408). It is obvious that a writ court should not encourage the aforesaid trend of bypassing a statutory provision." 19.9. In United Bank of India v. Satyawati Tondon [2010] 158 Comp Cas 251 (SC); [2010] 8 SCC 110, the Supreme Court had held as follows: "43. . . Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the griev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford [1859] 6 CBNS 336, in the following passage: (ER page 495) '. . . There are three classes of cases in which a liability may be established founded upon statute . . . But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it . . . The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenging the earlier order passed by the respondent, on February 23, 2010, cancelling the registration, the renewal of the registration had been granted for the year 2010-11. Therefore, the petitioner had rightly stated before this court that the writ petition, in W.P. No. 3904 of 2010, had become infructuous. In view of the said submission, this court, by its order, dated July 14, 2010, had dismissed the said writ petition. Thereafter, it is not open to the respondent to contend that the earlier order, dated February 23, 2010, gets revived and the renewal of the registration granted in favour of the petitioner, on June 27, 2010, is invalid. The respondent cannot blow hot and cold at the same time. 23. It is also noted that the petitioner had requested for the renewal of registration, for the year 2011-12, by paying the necessary fee. It is also seen that the petitioner had made a request for renewal of the registration by a representation, dated April 29, 2011, along with the fee payable for such registration, by way of a demand draft. However, the renewal of registration had not been granted to the petitioner, till date. 24. It is also seen that, as per sub-section (9) of s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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