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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 ..... ation Officer-cum-Assessing Authority, Gurugram (East) who after examining the books of account produced by the petitioner, had created an additional demand of a sum of Rs.8,97,43,496/- under HVAT Act and Rs.16,60,926/- under the Central Sales Tax Act, 1956 (for short "CST Act"). The petitioner challenged the abovesaid order dated 25.03.2015 by filing appeal before the Joint Excise and Taxation Commissioner (Appeals), Faridabad. The said appeal was decided on 28.09.2016 (conveyed vide endorsement No.2341 dated 22.03.2017) whereby the assessment order dated 25.03.2015 was set aside and the matter was remanded to the assessing authority with direction to decide the issues raised in terms of provisions of law after providing a fair opportunity 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 02.08.2017, that the same was constitutionally valid and issuance of the same was within the jurisdiction of respondent No.2 and within the exercise of powers of revision. While controverting the remaining pleas, the dismissal of the writ petition had been prayed for. 5. The petitioner filed rejoinder controverting the pleas as taken in the written statement filed by the respondents and re-asserting those of the writ petition. 6. It would not be out of place to mention here that the learned counsel for the writ petitioner restricted his argument to the extent of challenge as to the impugned show cause notice dated 30.12.2021 and has not pressed the ground challenging the vires of Section 174 (2) and (3) of HGST Act, 2017. He 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee and the impugned notice which was served upon the petitioner on 30.12.2021 was within limitation. She submitted that the provisions of Section 29 (2) (e) of HVAT Act were not at all attracted in the matter as the assessment proceedings in this case were closed on 02.08.2017 by the assessing authority when the remand assessment order had been passed and since as per Section 29 (2) (e) of the HVAT Act, the account books were also required to be preserved till the completion of proceedings pending under the HVAT Act and not only within a period of eight years from the close of the assessment year. She further submitted that even otherwise the respondents in their reply/additional affidavit had made it clear that 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 Devel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt had expressed a view that Article 226 was not meant to short circuit or circumvent statutory procedure. It was only where statutory remedies were entirely ill suited to meet the demand of extraordinary situations, as for instance where the very vires of the statute was in question or where private or public wrongs were so inextricably mixed up and the prevention of public injury and the vindication of public justice required it, that recourse may be had to Article 226 of the Constitution. It was held that even then the Court must have good and sufficient reason to bypass the alternative remedy provided by the statute and that the matters involving the revenue where statutory remedies were available 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suance of show cause notice. The appellant should firstly raise all the objections before the authority who had issued the show cause notice and in case, any adverse order is passed against the appellant, then liberty can be granted to the petitioner to approach the High Court and also to Indian Explosives Ltd.'s case (Supra), wherein the Hon'ble Supreme Court observed that the writ Court should not entertain a writ petition where ordinary remedy is available and judicial discipline ought to be adhered to or the department ought to be allowed to reach its conclusion since any decision of the High Court at such juncture would prejudice the interest of statutory authorities. 14. 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 Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooks of account for the A.Y. 2011-12 which it was not liable to preserve. It is not his case that the relevant books of account or documents relating to the assessment year are no more with him. More so, the contention as raised that the respondent No.2 would require such account books and documents appears to be based on conjectures and surmises. In the impugned notice, there is no mention that the relevant account books and documents would be required by respondent No.2. Not even this in their written statement, the respondents have categorically submitted that the illegalities and improprieties which have been pointed out in the impugned notice are on the basis of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and as a revisional jurisdiction could not be equated with appeal powers in all its parameters. He has also relied upon Haryana Agro Industries Corporation Ltd.'s case (Supra) wherein a Coordinate Bench of this Court had held that the revisional authority must confine himself to the record which is called for by him and it was before the lower authority. He cannot take into consideration any fresh material which is neither pending nor disposed of by the taxing authority and has further referred to Mahaboob Ali Mohammed Yakub & Sons v. State of Karnataka, (1993) 90 STC 276 (Kar.), wherein High Court of Karnataka had observed that the revisional authority was empowered 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 resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision is preferred by the petitioner to whom this notice is addressed. The petitioner may certainly present his view point or issues and it will only be thereafter that the determination or decision on the show cause notice would be arrived at. The petitioner, however, filed this writ petition even before filing any reply to respondent No.2. It has failed to show that there was any lack of jurisdiction on the part of respondent No.2 while issuing this notice. Though it has been submitted that the principles of natural justice had been violated, however, it could not be pointed out as to what principle of natural justice had been violated while issuing the 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 ..... 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