2017 (8) TMI 427 - HC - VAT and Sales Tax

Petitioner must exhaust appeal remedy before High Court, appeal within 30 days to avoid dismissal.

M/s Huawei Telecommunications India Co. Pvt. Ltd. Versus The State of Haryana and another

The court directed the petitioner to pursue the alternative remedy of appeal against the assessment order dated 31.03.2016, emphasizing the importance of ... Principles of Natural Justice - Service of Notice - Form VAT N- 2 - petitioner claim is that the change of address duly communicated to Department - maintainability of petition where alternative remedy available - Held that: - The narration of facts noticed clearly shows that certain factual matrix is required to be established for which the first appellate authority would be proper forum instead of invoking writ jurisdiction of this Court under Articles 226/227 of the Constitution of India at the first instance - The Apex Court in Commissioner of Income Tax and others vs. Chhabil Dass Agarwal, [2013 (8) TMI 458 - SUPREME COURT], considered the question of entertaining writ petition where alternative statutory remedy was available and held that Act provides complete machinery for the assessment/re-assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The writ petition is disposed of by relegating the petitioner to alternative remedy of appeal against the impugned order dated 31.03.2016 - decided in favor of petitioner. Issues Involved:1. Quashing of the assessment order dated 31.03.2016.2. Violation of principles of natural justice.3. Service of notice in Form VAT N-2.4. Limitation period for completion of assessment.5. Alternative remedy of appeal.Detailed Analysis:1. Quashing of the assessment order dated 31.03.2016:The petitioner sought to quash the assessment order dated 31.03.2016 for the assessment year 2012-2013, claiming it was issued in violation of the principles of natural justice. The petitioner argued that no notice in Form VAT N-2 was served within the required time, which is a prerequisite for initiating assessment proceedings under Section 15 of the Haryana VAT Act, 2003 (HVAT Act).2. Violation of principles of natural justice:The petitioner contended that the assessment order was issued without serving the mandatory notice, thereby violating the principles of natural justice. The petitioner claimed that the notices were sent to an old address despite having informed the department of the change in address. The petitioner highlighted that the assessment order was served by hand at the new address on 10th June 2016, which was beyond the limitation period.3. Service of notice in Form VAT N-2:The petitioner asserted that no notice in Form VAT N-2 was served, and upon inspecting the assessment file, it was found that no such notice existed. Notices dated 01.03.2016 and 16.03.2016 were sent to the old address, resulting in non-service. The petitioner argued that the assessment order was therefore invalid due to the lack of proper notice.4. Limitation period for completion of assessment:The petitioner argued that the limitation period for completing the assessment for the year 2012-13 expired on 31st March 2016. The assessment order was served on 10th June 2016, which was beyond the statutory period, making the order invalid.5. Alternative remedy of appeal:The court noted that the petitioner had an alternative remedy of appeal under Section 33 of the HVAT Act. The court referred to the Apex Court's decision in Commissioner of Income Tax and others vs. Chhabil Dass Agarwal, which emphasized the rule of self-imposed limitation in entertaining writ petitions when an efficacious alternative remedy is available. The court highlighted that the petitioner should have exhausted the alternative remedy of appeal before approaching the High Court.Conclusion:The court concluded that the petitioner should pursue the alternative remedy of appeal against the impugned order dated 31.03.2016. The court disposed of the writ petition, directing that if the appeal is filed within 30 days from the receipt of the certified copy of the order, it should not be dismissed on the ground of limitation and should be decided expeditiously in accordance with the law.