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TMI Blog2023 (2) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant under section 33 of the VAT Act, which it had not pursued. Should the answer to the first question be in the negative, we would next be required to decide whether to remit the writ petition to the High Court for hearing it on merits or to examine the correctness or otherwise of the orders impugned before the High Court. 3. It appears on a perusal of the order under challenge in this appeal that the appellant had questioned the jurisdiction of the Deputy Excise and Taxation Commissioner (ST)-cum-Revisional Authority, Kurukshetra (hereafter 'the Revisional Authority', for short) to reopen proceedings, in exercise of suo motu revisional power conferred by section 34 of the VAT Act, and to pass final orders holding that the two assessment orders, both dated 28th February, 2007 passed by the ETO-cum-Assessing Authority, Kurukshetra (hereafter 'the Assessing Authority', for short) for the assessment years 2003-04 and 2004-05 suffered from illegality and impropriety as delineated therein, viz. that the Assessing Authority erred in levying tax on mosquito repellant (a product manufactured by the appellant) @ 4% instead of 10%. Keeping in view the objection raised by counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition "not maintainable". In a long line of decisions, this Court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the "maintainability" of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that "entertainability" and "maintainability" of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to "maintainability" goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of "entertainability" is entirely within the realm of discretion of the high courts, writ remedy bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fundamental rights; (ii) where there is violation of principles of natural justice; (iii) where the order or the proceedings are wholly without jurisdiction; or (iv) where the vires of an Act is challenged. 7. Not too long ago, this Court in its decision reported in 2021 SCC OnLine SC 884 (Assistant Commissioner of State Tax vs. M/s. Commercial Steel Limited) has reiterated the same principles in paragraph 11. 8. That apart, we may also usefully refer to the decisions of this Court reported in (1977) 2 SCC 724 (State of Uttar Pradesh & ors. vs. Indian Hume Pipe Co. Ltd.) and (2000) 10 SCC 482 (Union of India vs. State of Haryana). What appears on a plain reading of the former decision is that whether a certain item falls within an entry in a sales tax statute, raises a pure question of law and if investigation into facts is unnecessary, the high court could entertain a writ petition in its discretion even though the alternative remedy was not availed of; and, unless exercise of discretion is shown to be unreasonable or perverse, this Court would not interfere. In the latter decision, this Court found the issue raised by the appellant to be pristinely legal requirin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to arbitration. 11. We have reasons to believe, considering the nature of objection raised by the respondents as recorded by the High Court in the impugned order, that the High Court had mistakenly referred to Titagarh Paper Mills (supra) while intending to rely on a different decision of this Court on an appeal preferred by the same party, reported in (1983) 2 SCC 433 (Titaghur Paper Mills Co. Ltd. vs. State of Orissa). While upholding the impugned order of dismissal of the writ petition, where an order passed by the Sales Tax Officer was under challenge, this Court in Titaghur Paper Mills Co. Ltd. (supra) held that the challenge being confined to the regularity of proceedings before the Sales Tax Officer and there being no suggestion that the concerned officer had no jurisdiction to make an assessment, the decision in Mohd. Nooh (supra) was clearly distinguishable since in that case there was total lack of jurisdiction. This Court also held that under the scheme of the relevant Act, there was a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of and that since the authority of the concerned officer to make an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Assessment Years 2003-04 and 2004-05, respectively, accepting the classification of goods and the rate of tax as stated by the appellant in its returns, i.e. 4%. 17. Subsequently, the Revisional Authority called for the assessment records of the appellant for the Assessment Years 2003-04 and 2004-05 for revision of the assessment on classifying the household insecticide products of the appellant as mosquito repellants and taxable at the higher rate of tax, i.e. 10%, instead of 4%. Initially, show-cause notices seeking to revise the assessments made for the Assessment Years 2003-04 and 2004-05 were issued, and such exercise was followed up by identically worded final orders, both dated 2nd March, 2009. 18. Several legal questions including validity of certain notifications were raised by the appellant before the High Court in its writ petition. Apart from the question as to whether mosquito repellants are goods classifiable as insecticides, pesticides, weedicides, etc., one other question which the appellant sought to raise was whether an amendment in the schedule of classification/rates of tax could be applied to completed assessments for the assessment years prior to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of tax. Confusion was also cleared with the amendment to entry 67 vide notification dated 1.7.2005. In view of the above facts, it is clear that assessing authority while framing assessment has erred in levying tax @ 4% on mosquito repellants. Hence the assessment order dated 28.3.2008 is revised u/s 34 of the Act ibid as under: TTO @ 10% Rs.5,28,89,282 Rs.52,88,928 (Mosquito Repellants) Tax already assessed By the AA in original Order Rs.21,15,571 Due Rs.31,73,357 Issue Tax Demand Notice Challan for Rs.31,73,357 along with a copy of the order to the dealer." 20. The assessment order dated 28th March, 2008 of the Assessing Authority under section 15 of the VAT Act pertaining to Assessment Year 2004-05, which was sought to be revised by the Revisional Authority, had taken into consideration the decision of this Court reported in (1998) 6 SCC 397 (Sonic Electrochem vs. S.T.O.). The appellant therein having sold 'Jet Mat', a mosquito repellent, it was ruled by this Court that the same was liable to tax @ 10%. Considering such decision, a notice was issued to the appellant to explain as to why tax should not be levied @ 10% on the sale of 'Godrej Mat'. Put to notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support of the appeal, Mr. V. Lakshmikumaran, learned counsel, contended that the Assessing Authority having passed the order dated 28th March, 2008 taking into consideration the decision of the Tribunal, which in turn distinguished the decision in Sonic Electrochem (supra), and such decision having attained finality, the Revisional Authority could not have assumed a jurisdiction to suo motu issue the impugned show-cause notices as well as the final revisional orders under section 34 of the VAT Act holding that mosquito repellent mats being unscheduled goods, are taxable at the general rate of tax. According to him, the Revisional Authority was as much bound by the order of the Tribunal as the Assessing Authority was having regard to the similarity of issues involved and it was not open to such authority to take a view different from the one expressed by the Tribunal. 22. Our attention was drawn by Mr. Lakshmikumaran to the decision of this Court reported in 1992 SUPP (1) SCC 443 (Union of India and Ors. Vs. Kamlakshi Finance Corporation Ltd.) in support of the proposition that in disposing of quasi-judicial issues before them, the Revenue Officers are bound by the decisions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in relation thereto, as he may think fit: Provided that no order passed by a taxing authority shall be revised on an issue, which on appeal or in any other proceeding from such order is pending before, or has been settled by, an appellate authority or the High Court or the Supreme Court, as the case may be: Provided further that no order shall be revised after the expiry of a period of three years from the date of the supply of the copy of such order to the assessee except where the order is revised as a result of retrospective change in law or on the basis of a decision of the Tribunal in a similar case or on the basis of law declared by the High Court or the Supreme Court." (2) The State Government may, by notification in the Official Gazette, confer on any officer not below the rank of Deputy Excise and Taxation Commissioner, the powers of the Commissioner under sub-section (1) to be exercised subject to such exceptions, conditions and restrictions as may be specified in the notification and where an officer on whom such power have been conferred passes an order under this section, such order shall be deemed to have been passed by the Commissioner under sub-section (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a mosquito repellant notwithstanding the fact that it not only repels mosquitoes but is also capable of killing mosquitoes. For the reasons assigned in the decision, it was held that 'Jet Mat' is not an insecticide which would be entitled for partial exemption under Entry 98 of the Sales Tax Act. 31. It is, therefore, clear that because of the specific entry dealing with mosquito repellents, this Court held 'Jet Mat' to be covered under Entry 129. 32. As the Tribunal in its order dated 21st November, 2001 found, there was no such corresponding entry in the VAT Act. Bearing in mind the same as well as on consideration of a decision of the Madras High Court and other decisions, the Tribunal had proceeded to hold that mosquito repellents containing 4% 'Alethrin' was an insecticide and hence, liable to concessional rate of tax. 33. While deciding the present appeal, we are primarily concerned with the issue of assumption of jurisdiction by the Revisional Authority on the face of the unchallenged order of the Tribunal dated 21st November, 2001, and not with the merits of the decision either given by the Tribunal or by the Revisional Authority. What stares at the face of the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered from any illegality or impropriety. 37. A decision may be questioned as suffering from an illegality if its maker fails to understand the law that regulates his decision making power correctly or if he fails to give effect to any law that holds the field and binds the parties. On the other hand, having regard to the purpose section 34 seeks to serve, to take exception to a decision on the ground of lack of propriety of any proceedings or order passed in such proceedings, it essentially ought to relate to a procedural impropriety. It is incumbent for the accuser to show that the decision maker has failed to observe the standard procedures applicable in case of exercise of his power. Additionally, to impeach an order on the ground of moral impropriety, it has to be shown that the weight of facts together with the applicable law overwhelmingly points to one course of action but the decision has surprisingly gone the other way, giving reason to suspect misbehaviour or misconduct in the sphere of activity of the decision maker warranting a revision. 38. There is nothing on record to justify either illegality or (procedural/moral) impropriety in the proceedings before the Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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