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TMI Blog2019 (10) TMI 1451X X X X Extracts X X X X X X X X Extracts X X X X ..... n file application to the Tribunal seeking reference of question(s) of law arising out of the order of the Tribunal, to this Court for its opinion. The period for filing such an application has been prescribed in Section 12-D(1) as 90 days. The same is extendable further by 30 days - Section 12-D of the Act further provides that in case the Tribunal rejects the application seeking reference of question(s) of law arising out of the order of Tribunal to this Court, the aggrieved party can file application before this court seeking a direction to the Tribunal to refer the aforesaid question(s) to this court for its opinion. The petitioner has bypassed that remedy and approached this court by filing the present writ petition on 17.09.2012, in which the respondent No.1 appeared on its own on 10.10.2012. The instant petition is not a writ petition filed by an assessee, where additional prayer for stay of recovery of tax has been made. Even that may have to be considered keeping in the provisions of the Act - The argument that the alternative remedy may not be effective also deserves to be rejected for the reason that even the question of law sought to be raised by the petitioner, as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the appellant therein (92.7 FM) is service provider covered under SRO 117 dated March 30, 2007 and whether the service so rendered are taxable under the Act ? The appeals were dismissed. Orders were challenged before the Tribunal. The Tribunal vide composite order dated February 22, 2012 allowed the appeals. On the basis of these facts the State has preferred to challenge the order passed by the Tribunal by filing the present writ petition. 4. At the very outset, learned counsel for the respondent No. 1 raised a preliminary objection regarding maintainability of the writ petition. He submitted that against the order passed by the Tribunal, the State had remedy of filing an application before the Tribunal seeking reference of question(s) of law, arising out of the order passed by the Tribunal to this Court. And in case the aforesaid application is not allowed, the remedy is before this Court for a direction to the Tribunal to refer the question(s) of law so raised, to this Court. The aforesaid Section provides for limitation for filing of such an application to the Tribunal. 5. The State in the present case has tried to over reach the process of the court. After expiry of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paper-book. 9. Relevant provisions of Section 12-D of the Act are reproduced hereunder: 12-D. Statement of case to the High Court.- (1) Within sixty days from the date of communication of the order of the Tribunal, passed in appeal being an order which affects the liability of any person to pay tax or penalty or interest or to forfeiture or any sum or which effects the recovery from any person of any amount under Section 12-A that person or the Commissioner, Sales Tax having jurisdiction over the whole of the State may by application in writing (accompanied where the application is made by that person by a fee of five hundred rupees) require the Tribunal to refer to the High Court any question of law arising out of such order and where the Tribunal agrees, it shall as soon as may be not later than ninety days from the receipt of such application draw up a statement of the case and refer it to the High Court: Provided that the Tribunal may, if it is satisfied that the dealer or the Commissioner was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period not exceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oadcasting commercial advertisements. The State claimed that the activity carried on by the respondent No.1 was exigible to tax under the provisions of the Act, read with notification bearing SRO 117 of 2007 dated March 30, 2007 and the respondent No.1 had not filed returns. Notices were issued. After affording it opportunity of hearing, assessments for the years 2007-08 and 2008-09 were framed, vide separate orders dated 03.09.2009. Aggrieved against those orders, the respondent No.1 preferred two appeals before the Deputy Commissioner, Commercial Taxes, Appeals (Appellate Authority), Jammu. The 1st Appellate Authority framed the following question for consideration: Whether the appellant is a service provider covered under SRO 117 dated 30.03.2007 and whether the services so rendered are taxable under J K GST Act. 11. Both the appeals filed by the respondent No.1 were dismissed by the Ist Appellate Authority, vide common order dated 01.03.2011. 12. Still aggrieved, the respondent No.1 preferred two appeals before the Tribunal. Vide common order dated 22.02.2012 passed by the Tribunal, both the appeals were allowed and the orders passed by the Assessing as well as App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inability of the petition and has expressed view prima facie in favour of maintainability which cannot be regarded as final expression of opinion on the controversy. Even otherwise the petition stands admitted. 2. Having heard learned counsel for the appellant, we clarify that the impugned order dated 02.07.2013 shall not be regarded as final expression of opinion on any issue referred in that order. The appellant shall be at liberty to raise all the issues including the issue with regard to the maintainability of the petition. 3. With the aforesaid observation, the appeal is dismissed. 19. A perusal of the aforesaid order shows that liberty was granted to the respondent No. 1 to raise all the issues including the issue regarding the maintainability of the writ petition. Hence, the contention raised by the learned Advocate General that writ petition having been admitted, the preliminary objection regarding maintainability of the writ petition cannot be considered at this stage is totally misconceived and deserves to be rejected. 20. To put the record straight, it is added that earlier as per Rules and circulars issue by Hon ble Chief Justice, tax matters used to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s impugned in the writ petition. A writ petition filed without complying with the mandatory requirements as provided for in the Jammu and Kashmir Writ Proceedings Rules, 1997 has to be dismissed. No doubt, not without affording opportunity to the party concerned to meet with the objection. 26. For the reasons mentioned above, in our view the preliminary objection raised by learned counsel for the respondent No 1 has to be sustained and the writ petition deserves to be dismissed on the ground of availability of an effective alternative remedy against the order impugned in the writ petition. 27. However, we find merit in the argument raised by learned Advocate General on the issue that the period spent by the petitioner before this court be excluded for the purpose of calculation of limitation for filing the appropriate application before the Tribunal. Hence, it is directed that, in case the petitioner files the application(s) before the Tribunal seeking reference of question(s) of law arising out of the order passed by the Tribunal within 3 weeks from today, the period spent by the petitioner before this court in the present proceedings, shall be excluded, while calculating th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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