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TMI Blog2012 (3) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Act, 1981. Hence, the writ petition is dismissed on the ground of availability of alternative remedy only. - W.P. (T) Nos. 1023, W.P. (T) Nos. 1024, W.P. (T) Nos. 1025, W.P. (T) Nos. 1026, W.P. (T) Nos. 1027 of 2012 - - - Dated:- 2-3-2012 - PRAKASH TATIA C.J. AND APARESH KUMAR SINGH J. M.S. Mittal, Senior Advocate and A.R. Choudhary for the petitioner Ajit Kumar, A.A.G., Rajesh Shankar and Abhay Kumar for the respondents JUDGMENT Background facts leading to present controversy is issuance of a demand by the Deputy Commissioner of Commercial Taxes first in the form of notice against M/s. BOC India Limited, which was challenged by BOC India Ltd., by preferring W.P.(T) No. 4693 of 2005 before this court but that pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment clearly rejected the plea of the writ petitioner to accept the process which has been prescribed in the statute to be taken to be binding for deciding whether the oxygen in question used by the writ petitioner is raw material or not and held that this issue is required to be decided on the basis of the evidence which may be produced and obtained by the Department. Because of this obvious reason the assessing officer not only inspected the site of the TISCO but also drawn a report with reference to the report of the procedure wherein the oxygen is consumed. The assessing officer, in assessment proceedings even gave opportunity of hearing to the representative of the TISCO as well as for producing evidence which was duly produced by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner relied upon judgments of the honourable Supreme Court reported in [1996] 5 SCC 373 (I.D.L. Chemicals Ltd. v. Union of India) and also in a case of Indian Explosives Ltd. v. Commissioner, Sales Tax, U.P. reported in [1978] 41 STC 315 (All) and submitted that the honourable courts in both the decisions have considered this aspect of the matter and clearly held that the writ petition is maintainable by a stranger to the proceeding and therefore, the present writ petition is maintainable. We have considered the submission of the learned counsel for the parties and perused the facts of the case as well as section 45(1) of the Act of 1981. It is true that in sub-section (1) of section 45 it is provided that the dealer may prefer appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the evidence obviously to be produced by the parties. The honourable apex court remanded the matter to the assessing officer and, therefore, following the decision of the honourable Supreme Court the petitioner itself appeared before the assessing authority and assessing officer entertained the evidence produced by the petitioner and thereafter, passed the impugned order. Therefore, the petitioner's right to challenge the order is concerned, i.e., available to the petitioner and that view is supported by the judgment relied upon by the counsel for the petitioner himself wherein it has been held that writ petition to challenge such order by stranger is maintainable if the person was not party in assessment proceedings and not the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emedy and other proceeding by such person like the petitioner under article 226 of the Constitution of India. In these facts it is difficult to hold that the same party, which was party before the same assessing authority, will not be entitled to prefer appeal. Meaning thereby, in the same proceeding against one order one is mandatorily required to prefer appeal if he wants to challenge the order passed by the original authority and another person cannot prefer appeal and can challenge the order only in the writ jurisdiction. Such interpretation cannot be given to section 45(1) of the Act of 1981. In these peculiar facts and circumstances of the case, we do not find any substance in the submission of the learned counsel for the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y intervene in that matter to avoid the multiplicity of proceeding and if BOC has not preferred appeal then the writ petitioner may prefer appeal against the impugned order and may file application for the condonation of delay for preferring appeal, which may be considered sympathetically by the appellate authority. The learned counsel for the petitioner submitted that the appellate authority or the officer holding the post of appellate authority has retired only on February 29, 2012 and therefore there may not be possibility of posting any officer in short time who may dispose the appeal. We may expect that the officer may be appointed soon and if officer is not appointed then the petitioner will be free to avail of remedy available ..... X X X X Extracts X X X X X X X X Extracts X X X X
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