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TMI Blog2000 (8) TMI 1117X X X X Extracts X X X X X X X X Extracts X X X X ..... and evasion. These notices are challenged by these petitions principally on the ground that (i) the Commercial Taxes Officer, Anti- evasion, has no jurisdiction to issue the impugned notices; (ii) the entire notices and the action purported to be taken in pursuance thereto is without jurisdiction; (iii) even if the notices are validly issued, there is no evasion of any tax. Use of ST Form No. 17 was proper and hence, there is no cause of action for issuance of the notices itself. Consequently, it is void ab initio; (iv) the interpretation sought to be put on the several notifications by the State and the Commercial Taxes Officer is incorrect. If properly read, even under the said notification, the use of ST Form No. 17 by the petitioner was only on concessional rate of tax at 3% was proper; (v) alternatively it is submitted that the notification itself is liable to be quashed as ultravires the Rajasthan Sales Tax Act, 1994 (hereinafter referred to as the Act ). In view of the above contentions raised in the petitions, notices to show caused why the petitions should not be admitted were issued by this Court and in response to the notices, a detailed reply has been filed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to be overruled. Taking into consideration the fact that such question is of regular recurrence and the law on the question of alternative remedy is being flouted, I have, therefore, with the consent of the parties, decided to consider this aspect of preliminary objections first without dealing with the cases on merits. The facts in these cases are undisputed and I am, therefore, called upon to decide all these questions of law on undisputed facts. The basic question of law as to whether a writ petition against a show cause notice under the Rajasthan Sales Tax Act can be directly entertained in the effective alternative remedy existing u/s 84 and other provisions of the Act. Shri Sangeet Lodha, learned counsel appearing on behalf of the Sales Tax Department submitted the following as preliminary objections:- (a) that no petition directly against show cause notice is maintainable; (b) that the petition is filed on 6. 3. 2000 when the notices were issued on 13. 12. 99 and after receipt of reply from the petitioners, the Assessing Authority decided on 25. 2. 2000 after hearing the assessee and an order was passed in the presence of the authorised representative of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ist the writ petition on all available grounds including ground of maintainability of petition on the ground of efficacious alternative remedy available under Statute. I am in respectful agreement with the views expressed by the Division Bench judgment and is also binding on this Court. This judgment was delivered on 5. 11. 99. Thereafter another Division Bench of this Court took up on a reference made by Justice Dr. B. S. Chauhan by his order dated 24. 7. 97 whereby he has specifically referred the question as to whether the cases pending since 1985 can be dismissed on the ground of alternative remedy being available. It came up for adjudication before a Division Bench of this Court on 1. 8. 2000 and relying on Gopi Chand Teli vs. State of Rajasthan (supra), judgment of this Court as also the decision of the Supreme Court in Sumedico Corporation and another vs. Regional Provident Fund Commissioner took the view that petitions pending final hearing can be dismissed on the ground of existence of alternative remedy relegating the party to alternative remedy. I am in respectful agreement with the view expressed in this case also. It will thus be seen that two different Division Benche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The following shall have the right to be heard at the hearing of the appeal: (a) the appellant, either in person or by the authorised representative; (b) the authority or officer against whose order the appeal has been preferred either in person or by a representative. (7) The appellate authority may, before disposing of any appeal make such further enquiry as it thinks fit, or may direct the assessing authority or the officer against whose order appeal has been preferred to make further enquiry and report the result of the same to the appellate authority and in disposing of the appeal the said authority may, (a) in the case of an order of assessment, interest or penalty. (i) confirm, enhance, reduce or annul the assessment, interest or penalty; or (ii) set aside the order of assessment, interest or penalty and direct the assessing authority to pass fresh order after such further enquiry as may be directed; and (b) in the case of any other order, confirm, cancel, vary or remand such order. (8) The appellate authority shall send a copy of the order passed by it to the appellant, the assessing authority, the Deputy Commissioner (Administration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (2) or (3). (6) The Tax Board may admit an appeal or permit the filing of memorandum of cross-objections after the expiry of the limitation provided in sub-secs. (2), (3) and (5), if it is satisfied that there was sufficient cause for not presenting the same within that limitation. (7) An appeal to the Tax Board shall be made in the prescribed form and shall be verified in the prescribed manner. (8) The Tax Board, during the pendency of an appeal before it, shall not stay any proceeding but it may, on an application in writing from the dealer, stay the recovery of the disputed amount of tax, fee, interest or penalty or any part thereof on the condition of furnishing adequate security to the satisfaction of the assessing authority; and the amount found ultimately due shall be subject to interest from the date it became first due, in accordance with the provisions of this Act. (9) Notwithstanding that an appeal against an order has been preferred to the Tax Board, the tax, fee, interest or penalty shall be paid in accordance with the order against which appeal has been preferred, unless recovery of such tax, fee, interest or penalty has been stayed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. (5) Any person feeling aggrieved by an order passed under sub-section (4) may apply for a review of the order to the High Court and the High Court may make such order thereon as it thinks fit. There are appropriate provisions under the Rajasthan Sales Tax Act itself providing for issuance of show cause notice for every action the Department chooses to take, which is likely to result in penal consequences in relation to an assessee. Looking to the entire scheme of the Act, it will, therefore, be seen that the Act provides a code in itself that provides effective and complete remedy and the provisions of the taxing statute beginning with show cause notice, grant of adequate opportunities to meet the cause mentioned in the notice and finally making of the order then providing a hierarchy of appeal or revision against possible error of fact and law, which according to the assessee, causes injustice to him. Care is taken by these provisions of embodying the basic principles of natural justice and obedience of those principles is made statutorily necessary by these provisions. It is in light of these provisions that the questions referred to above regarding alternative re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to note at this stage that under the Act, the requirement is of deposit of only 15% and even that can be waived or postponed by the appellate authority. In my opinion, in relation to taxation statutes, the law of existence of alternative remedy stands concluded by a judgment of the Supreme Court of India in a Five Judge Bench reported in Thansingh Nathmal others vs. The Superintendent of Taxes, Dhubri and others The Supreme Court observed as under:- The jurisdiction of the High Court under Art. 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Art. 226, where the petitioner has an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Supreme Court laid down that a right of appeal under a statute can be conditional one. The Supreme Court has in this case observed as under:- Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant. It is not the law that adjudication by itself following the rules of natural justice would be violative of any right- Constitutional or statutory - without any right of appeal, as such. If the Statute gives a right to appeal upon certain conditions, it is upon fulfilment of those conditions that the right becomes vested and exercisable to the appellant. It will, therefore, be seen that statutory right can be conditional and if the conditions are not onerous or very difficult for the assessee he must follow the statutory remedy before recourse can be taken to a writ petition. In the case of U. P. Financial Corporation and others vs. Naini Oxygen Acetylene Gas Ltd. and another, the Supreme Court observed that while exercising jurisdiction under Art. 226 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... litigant to persuade the alternative remedy. In a very recent decision, the Supreme Court has held that the Constitutional Court should insist upon the party to avail of an alternative remedy instead of invoking the extraordinary writ jurisdiction of the Court. The observations of the Supreme Court of India in the case of State of Himachal Pradesh vs. Raja Mahendra Pal others, should be considered in extenso, which are as under:- The learned counsel appearing for the appellant has vehemently argued that the writ petition filed was not maintainable as the High Court was not justified in entertaining the same and consequently granting the relief to the respondent No. 1. The rights of respondent No. 1, if any, are stated to be based upon a contract for which he was obliged to avail of the alternative efficacious remedy of filing a suit either for the recovery of the money or for rendition of accounts. It is contended that the discretionary powers vested in the High Court under Article 226 of the Constitution could not have been exercised in the facts and circumstances of the case. Though, we find substance in the submission of the learned counsel for the appellant, yet we a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te largess of public money, upon an unscrupulous litigant who preferred his claim on his proclaimed assumption of being as important as the Government of the State and equal thereto. Despite holding that the High Court had wrongly assumed the jurisdiction in the facts of the case, as earlier noticed, we are not inclined the dismiss the writ petition of the respondent No. 1 on this ground at this stage because that is likely to result in miscarriage of justice on account of the lapse of time which may now result in the foreclosure of all other remedies which could be availed of by the alternative remedies available to the respondent admittedly not being efficacious at this stage has persuaded us to decide the claim of the respondent on merits. From the above quoted observations, it will be seen that the High Court should not take up a writ petition directly when alternative remedy is provided unless there exist special circumstances which can persuade the High Court in deviating from such proposition of law regarding exercise of writ jurisdiction under Art. 226. In this decision, it is observed in the last four lines quoted above that the Supreme Court did not relegate the party to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their Lordships of the Supreme Court of India proceeded to deal with the provisions of the Sales Tax Act from Orissa State. Yet another decision of the Hon'ble Supreme Court of India, which may be noticed with due care and must be scrupulously observed as the appellate Court in Assistant Collector of Central Excise, Chandan Nagar, West Bengal vs. Dunlop India Ltd. and others The Supreme Court observed as under:- Art. 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public in- jury and the vindication of public justice require it that recourse may be had to Art. 226 of the Constitution. But then the Court must have good and sufficient reason to by-pass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. The Supreme Court can take judicial notice of the fact that the vast majority of the petitions u/art. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised, the petitioner is not entitled to bypass the remedy of appeal. In the case of Lodha Fabrics another vs. State of Rajasthan, it was held by this Court that whether caustic soda used by the petitioner was a part of manufacturing process or a raw material for dyeing and printing was essentially a question of fact and dismissal of the writ petition by the learned single Judge on the ground of availability of alternative remedy was proper. A Division Bench of this Court in M/s Orex India (P) Ltd. vs. The State of Rajasthan another, decided on 27. 4. 2000 considered the constitutional validity of S. 2 (39) of the Rajasthan Sales Tax Act, 1994 and having found it valid, relegated the parties to the remedy of appeal. Thus, affirming the continuous view of this Court that alternative remedy under the provisions of the Sales Tax Act should be followed and the writ petition should not be directly entertained. In the case of Sumedico Corporation and another vs. Regional Provident Fund Commr., the Supreme Court in its decision has gone to the extent of relegating the parties to alternative remedy of appeal when the alternative remedy was not in existence when the petition wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present case. No injury whatever will be caused if the petitioners are relegated to alternative appeal. In fact, grievous public injury may be caused if the petitioners are permitted to bypass or short circuit the alternative remedy as it may result in great loss of revenue or loss of remedy to the State. There is no question of prevention of any public injury nor is it necessary for justice to public at large that the petitioners should be allowed to by pass the alternative remedy. It is worthwhile to note in my opinion, that less than 1% of the population is required to pay sales tax. The requirement to pay sales tax is not faced with any constitutional problem and hence, in the circumstances, it is not at all necessary to permit by passing of the effective alternative remedy. As a result of the aforesaid discussion, I am firmly of the view that unless exceptions as enumerated in the foregoing paras exist as will be established by the pleadings of the parties, this Court would not exercise its jurisdiction and permit bypassing of statutory alternative remedy. I, therefore, dismiss these petitions, relegate the parties to the alternative remedy of reply to the show c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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