2019 (10) TMI 1551 - HC - VAT and Sales Tax

Court emphasizes statutory appeal over writ petition challenge, grants extension for appellate remedy.

MS. RED BEE ENTERPRISES Versus THE ASSISTANT COMMISSIONER OF STATE TAX

The High Court dismissed a challenge raised in a writ petition against an assessment order, emphasizing the need for utilizing statutory appeal ... Validity of order of assessment finalised against the appellant/writ petitioner - whether an exercise to examine the errors pointed out in the assessment cannot be undertaken in the writ petition unless a re-examination of relevant circumstances are made? - seeking maintenance of status quo with respect to recovery based on the assessment, for a period of six weeks from the date of the judgment - HELD THAT:- True, that existence of an alternate statutory remedy is not an absolute bar for entertaining the writ petition. But whether the error pointed out against the assessment need to be examined by exercise of powers vested under Article 226 of the Constitution of India or whether the petitioner need to be relegated to avail the statutory remedy, is a matter of discretion left with the writ court to decide. If the Single Judge was reluctant to exercise the discretion in favour of the assessee/writ petitioner, it cannot be said that there occurred any an illegality, irregularity or impropriety, which warrants interference in an intra-court appeal. Therefore we are not persuaded to entertain the above writ appeal. However, learned counsel for the appellant made an appeal to this court for indulgence to extend the period stipulated in the impugned judgment for facilitating the appellant to seek the appellate remedy. If the appellant files the statutory appeal against the impugned assessment within two weeks from today, the stay application if any accompanying such appeal shall be disposed of by the appellate authority within four weeks from the date of filing of such appeal. Collection and recovery of the amounts due under the impugned assessment shall be kept in abeyance for a period of six weeks from today, in order to facilitate the appellant to take appropriate steps. Petition disposed off. Issues:Challenge against assessment order - Examination of errors in assessment - Statutory appeal opportunity - Interference in writ petition discretion - Extension of period for seeking appellate remedy - Stay application disposal timeline - Collection and recovery abeyance period - Condonation of delay consideration.Analysis:The judgment delivered by the High Court involved a challenge raised in a writ petition against an assessment order finalized against the appellant. The Single Judge declined the challenge, stating that examining errors in the assessment cannot be done in the writ petition without re-examining relevant circumstances. It was highlighted that filing a statutory appeal would provide the assessee an opportunity to present relevant records to contest the assessment. The Single Judge allowed the writ petitioner to file an appeal and stay application within the specified time, with directions for the appellate authority to dispose of the stay application within four weeks from the appeal filing date. Additionally, the respondents were directed to maintain status quo on recovery based on the assessment for six weeks from the judgment date.Vehement contentions were raised by the appellant's counsel regarding the Single Judge's refusal to interfere with the assessment errors. The judgment emphasized that while the existence of a statutory remedy does not bar entertaining a writ petition, deciding whether to examine assessment errors under Article 226 or resort to the statutory remedy is at the writ court's discretion. The High Court noted that if the Single Judge was hesitant to exercise discretion in favor of the assessee, it did not amount to illegality warranting intra-court appeal interference, leading to the decision of not entertaining the writ appeal.However, the appellant's counsel appealed to the High Court to extend the period specified in the impugned judgment to facilitate seeking the appellate remedy. The High Court granted an extension, allowing the appellant to file a statutory appeal within two weeks, with the stay application, if any, to be disposed of within four weeks from the appeal filing date. Collection and recovery of amounts under the assessment were to be suspended for six weeks to enable the appellant to take necessary steps. The judgment further clarified that the appellate authority should consider the time spent by the appellant in pursuing the writ petition and appeal when reviewing any application seeking condonation of delay in filing the appeal.