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TMI Blog2023 (7) TMI 1060X X X X Extracts X X X X X X X X Extracts X X X X ..... produce documents and books of accounts pertaining to the A.Y. 2011-12 while conducting proceedings on this notice though the petitioner was not required to maintain and preserve such documents and books of account beyond a period of eight years from close of relevant assessment year. The argument so raised by the petitioner appears to be attractive but on a careful perusal of the record, the same lacks any merit. When the respondent No.2 in the impugned notice has not sought production of the account books for the relevant assessment year and when the respondents have rather clarified that they would not be needing production of the same at the stage of determining the impugned show cause notice, the impugned notice could not be stated to be illegal or without jurisdiction merely because it was issued after expiry of period of eight years from the closing of A.Y. 2011-12. In the present set of circumstances, any finding by this Court at this stage is likely to be prejudicial to the interest of either of the parties to this petition. The issues raised in the show cause notice are required to be determined by the respondent No.2 at the first instance. The matter has to be de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of being heard to the petitioner. The matter was then listed before the respondent No.3 assessing authority who disposed of the remand proceedings vide order dated 02.08.2017 while giving opportunity to the petitioner and determined the tax liability of the petitioner as VAT amounting to Rs.5,31,96,919/- and CST of Rs.16,60,925/-. After adjusting the tax amount already deposited, input tax credit and tax deducted at source on work contract, the liability of the petitioner was fixed @ Rs.5,69,41,965/-. 3. It was further submitted that on 30.12.2021, a show cause notice for revision of the remand assessment order was issued by the respondent No.2 under Section 34 of the HVAT Act and Section 9 (2) of the CST Act alleging as many as nine illegalities/improprieties in the assessment order dated 02.08.2017 as passed by the respondent No.3. The petitioner being aggrieved by the impugned notice dated 30.12.2021 has made prayer for quashing the same on the grounds that no case for invoking jurisdiction under Section 34 of the HVAT Act had been made out in favour of respondent No.2 as there was no illegality or impropriety in the assessment order dated 02.08.2017. It is alleged that by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strenuously argued that the impugned show cause notice was liable to be quashed as it was issued in violation of principles of natural justice and was without jurisdiction. He submitted that by issuing the impugned notice, the respondent No.2 was seeking to re-examine the books of account of the petitioner pertaining to the A.Y. 2011-12 which he was not competent to ask for as under Section 29 (2) (e) of the HVAT Act. The petitioner was responsible for preserving its account books only for a period of eight years after the close of the year to which the books related and as the period of eight years stood expired as on 31.03.2020, therefore, the petitioner could not be compelled to produce the books of account which it was not statutorily required to maintain after 31.03.2020. He further argued that no illegality or impropriety in the remand assessment order dated 02.08.2017 was either made out or pointed out in the impugned notice and, therefore, the respondent No.2 could not invoke jurisdiction under Section 34 of VAT Act to revise the remand assessment order. While stressing that the petitioner was within its right to file this petition under the provisions of Article 226 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at no books of accounts were asked for by the respondent No.2 nor the same were required for the purpose of revising of the remand assessment order. With these broad arguments, it was submitted that the writ petition was not maintainable and was liable to be dismissed. To fortify her argument, learned Deputy Advocate General placed reliance upon authorities cited as Commissioner of Central Excise, Haldia v. M/s Krishna Wax (P) Ltd. , 2020 (12) SCC 572; Bhubaneswar Development Authority v. Commissioner of Central Excise, Customs and Service Tax and others, 2015 (39) STR 355 C.C.T. Orissa and others v. Indian Explosives Ltd. , AIR 2008 SC 1631. 8. We have heard learned counsel for both the parties at considerable length and have given due deliberations to the contentions as raised by both the sides. 9. The petitioner has challenged validity of impugned show cause notice dated 30.12.2021 as issued by respondent No.2 whereby the latter has sought revision of order passed by assessing officer on 02.08.2017 qua assessment for the A.Y. 2011-12. Admittedly, the petitioner has challenged the validity of the impugned show cause notice without availing the effective and alternativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able were not such matters. 11. Reference can further be made to Raj Kumar Shivhare v. Directorate of Enforcement , (2010) 4 SCC 772, wherein the Hon ble Apex Court while dealing with the issue whether the alternative statutory remedy available under the Foreign Exchange Management Act, 1999 could be bypassed and jurisdiction under Article 226 of the Constitution could be invoked, observed as follows:- When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case, the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a goby by a litigant for invoking the form of judicial review of High Court under writ jurisdiction. 12. In two recent judgments cited as The State of Maharashtra and others v. Greatship (India) Limited, AIR 2022 SC 4408 and The State of Madhya Pradesh and another v. M/s Commercial Engineers and Body Building Company Limited , 2022 (14) Scale 920, the Hon ble Supreme Court was dealing with cases wherein the assessment orders had been challenged by the assessee directly by f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. It will also be relevant to refer to M/s Godrej Sara Lee Ltd. s case (Supra), which is a very recent pronouncement of Hon ble Supreme Court and has been heavily relied upon by the learned counsel for the petitioner to buttress his argument that a writ petition was maintainable even without availing the alternative remedy. In the above cited case, the assessee had challenged the assessment order passed by the revisional authority in exercise of suo motu revisional power by filing writ petition before this High Court. The writ petition had been dismissed as this High Court had declined interference on the ground of availability of an alternative remedy of appeal to the appellant under Section 33 of the HVAT Act. The Hon ble Supreme Court held that since a jurisdictional issue was raised by the assessee in the writ petition questioning the very competence of the revisional authority to exercise suo motu power, the same being a pure question of law, the writ petition ought not to have been thrown out at the threshold. 15. In view of the proposition of law as laid down by the Hon ble Apex Court in the above cited authorities, it is very much explicit that the High Court can ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment record, which was available before the assessing authority and now no fresh evidence or material is required. It will not be out of place to mention here that the respondents even filed an additional short reply on 16.03.2023 submitting therein that no new document would be required by the respondents for the purpose of revising the remand assessment order and it would be done on the basis of documents available on record during the time of original assessment. In such circumstance when the respondent No.2 in the impugned notice has not sought production of the account books for the relevant assessment year and when the respondents have rather clarified that they would not be needing production of the same at the stage of determining the impugned show cause notice, in our considered opinion, the impugned notice could not be stated to be illegal or without jurisdiction merely because it was issued after expiry of period of eight years from the closing of A.Y. 2011-12. 16. It may also be relevant to mention here that the remand assessment order was passed in this case as on 02.08.2017. Under proviso to Section 34 (1) of the HVAT Act, the limitation to revise an assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpowered to call for and examine the record of any order passed or proceedings recorded by a Subordinate Officer only for the purpose of satisfying himself as to the legality or propriety of such order or as to the regularity of proceedings and it was for the revisional authority to show that the order sought to be revised was illegal and improper or the proceedings of the Subordinate Officer were irregular which was prejudicial to the interest of the revenue. 18. Learned counsel for the petitioner has submitted that the respondent No.2 could exercise revisional power under Section 34 of the HVAT Act only for the purpose of satisfying himself as to the legality and propriety of the proceedings conducted while passing remand assessment order dated 02.08.2017 and not for dealing with the question that the allowances were rightly given by the assessing officer or not, but as the respondent No.2 proposed to embark upon such questions, therefore, had no jurisdiction to issue the impugned notice. In this regard, learned counsel has relied upon V.K. Uchal s case (Supra) wherein the High Court of Karnataka had observed that impropriety could be said to arise only where a decision was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned notice and how? The respondent No.2 was competent to issue the impugned notice within six years from the date of supply of copy of the remand assessment order dated 02.08.2017 to the assessee and as such this notice had been issued within time and, therefore, bar of limitation or jurisdiction does not arise. As discussed in Malladi Drugs and Pharma Limited s case (Supra), the petitioner can very well raise all the objections before the respondent No.2 who had issued the impugned show cause notice and in any case, if any adverse order is passed against it, then liberty can be granted to it to approach this Court. In M/s Godrej Sara Lee Ltd. s case (Supra) which has been relied upon by learned counsel for the petitioner, the Hon ble Apex Court had held that the writ petition under Article 226 could be entertained even if an alternative remedy was available only in cases where the controversy was a purely legal one and did not involve disputed questions of fact but only questions of law and jurisdictional issue had been raised. The proposition as laid down in this case cannot be stated to be applicable to the peculiar facts and circumstances of this case as neither pure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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