AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2000 (8) TMI 1117
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and hence, notice to show cause was issued why the Company should not be penalised for such misuse and evasion. These notices are challenged by these petitions principally on the ground that (i) the Commercial Taxes Officer, Anti- evasion, has no jurisdiction to issue the impugned notices; (ii) the entire notices and the action purported to be taken in pursuance thereto is without jurisdiction; (iii) even if the notices are validly issued, there is no evasion of any tax. Use of ST Form No. 17 was proper and hence, there is no cause of action for issuance of the notices itself. Consequently, it is void ab initio; (iv) the interpretation sought to be put on the several notifications by the State and the Commercial Taxes Officer is incorrect. If properly read, even under the said notification, the use of ST Form No. 17 by the petitioner was only on concessional rate of tax at 3% was proper; (v) alternatively it is submitted that the notification itself is liable to be quashed as ultravires the Rajasthan Sales Tax Act, 1994 (hereinafter referred to as "the Act"). In view of the above contentions raised in the petitions, notices to show caused why the petitions should not be admi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ons and several other judgments of this Court in these cases, it is also contended that the preliminary objection is liable to be overruled. Taking into consideration the fact that such question is of regular recurrence and the law on the question of alternative remedy is being flouted, I have, therefore, with the consent of the parties, decided to consider this aspect of preliminary objections first without dealing with the cases on merits. The facts in these cases are undisputed and I am, therefore, called upon to decide all these questions of law on undisputed facts. The basic question of law as to whether a writ petition against a show cause notice under the Rajasthan Sales Tax Act can be directly entertained in the effective alternative remedy existing u/s 84 and other provisions of the Act. Shri Sangeet Lodha, learned counsel appearing on behalf of the Sales Tax Department submitted the following as preliminary objections:- (a) that no petition directly against show cause notice is maintainable; (b) that the petition is filed on 6. 3. 2000 when the notices were issued on 13. 12. 99 and after receipt of reply from the petitioners, the Assessing Authority d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h Verma vs. State of Rajasthan & ors. In this case, it has been specifically observed that even after admission of writ petition ex-parte, it is open to respondents to resist the writ petition on all available grounds including ground of maintainability of petition on the ground of efficacious alternative remedy available under Statute. I am in respectful agreement with the views expressed by the Division Bench judgment and is also binding on this Court. This judgment was delivered on 5. 11. 99. Thereafter another Division Bench of this Court took up on a reference made by Justice Dr. B. S. Chauhan by his order dated 24. 7. 97 whereby he has specifically referred the question as to whether the cases pending since 1985 can be dismissed on the ground of alternative remedy being available. It came up for adjudication before a Division Bench of this Court on 1. 8. 2000 and relying on Gopi Chand Teli vs. State of Rajasthan (supra), judgment of this Court as also the decision of the Supreme Court in Sumedico Corporation and another vs. Regional Provident Fund Commissioner took the view that petitions pending final hearing can be dismissed on the ground of existence of alternative remedy ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....42 be paid in accordance with the order against which an appeal has been preferred. (5) The appeal shall be in the prescribed form and shall be verified in the prescribed manner. (6) The following shall have the right to be heard at the hearing of the appeal: (a) the appellant, either in person or by the authorised representative; (b) the authority or officer against whose order the appeal has been preferred either in person or by a representative. (7) The appellate authority may, before disposing of any appeal make such further enquiry as it thinks fit, or may direct the assessing authority or the officer against whose order appeal has been preferred to make further enquiry and report the result of the same to the appellate authority and in disposing of the appeal the said authority may, (a) in the case of an order of assessment, interest or penalty. (i) confirm, enhance, reduce or annul the assessment, interest or penalty; or (ii) set aside the order of assessment, interest or penalty and direct the assessing authority to pass fresh order after such further enquiry as may be directed; and (b) in the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of a dealer, of receipt of the notice, file a memorandum of cross- objections verified in the prescribed manner, against any part of the said referred order and such memorandum shall be disposed of by the Tax Board as if it were an appeal within the time specified in sub-section (2) or (3). (6) The Tax Board may admit an appeal or permit the filing of memorandum of cross-objections after the expiry of the limitation provided in sub-secs. (2), (3) and (5), if it is satisfied that there was sufficient cause for not presenting the same within that limitation. (7) An appeal to the Tax Board shall be made in the prescribed form and shall be verified in the prescribed manner. (8) The Tax Board, during the pendency of an appeal before it, shall not stay any proceeding but it may, on an application in writing from the dealer, stay the recovery of the disputed amount of tax, fee, interest or penalty or any part thereof on the condition of furnishing adequate security to the satisfaction of the assessing authority; and the amount found ultimately due shall be subject to interest from the date it became first due, in accordance with the provisions of this Act. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h Court may formulate the question of law in any form or allow any other question of law to be raised. (4) The High Court shall after hearing the parties to the revision, decide the question of law stated to it or formulated by it, and shall thereupon pass such order as is necessary to dispose of the case. (5) Any person feeling aggrieved by an order passed under sub-section (4) may apply for a review of the order to the High Court and the High Court may make such order thereon as it thinks fit. " There are appropriate provisions under the Rajasthan Sales Tax Act itself providing for issuance of show cause notice for every action the Department chooses to take, which is likely to result in penal consequences in relation to an assessee. Looking to the entire scheme of the Act, it will, therefore, be seen that the Act provides a code in itself that provides effective and complete remedy and the provisions of the taxing statute beginning with show cause notice, grant of adequate opportunities to meet the cause mentioned in the notice and finally making of the order then providing a hierarchy of appeal or revision against possible error of fact and law, which accor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n cases where the alternative remedy provided under the statute is very onerous and burdensome in character making it very difficult for the assessee to take recourse to that remedy. In effect, the Constitution Bench of the Supreme Court of India spelt out another exception to the rule stated above. It would be better to note at this stage that under the Act, the requirement is of deposit of only 15% and even that can be waived or postponed by the appellate authority. In my opinion, in relation to taxation statutes, the law of existence of alternative remedy stands concluded by a judgment of the Supreme Court of India in a Five Judge Bench reported in Thansingh Nathmal & others vs. The Superintendent of Taxes, Dhubri and others The Supreme Court observed as under:- "The jurisdiction of the High Court under Art. 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Delhi Municipal Corporation Act. According to the ratio of this case, therefore, even a provision of appeal requires deposit of the amount of tax assessed is not unconstitutional and assessee is liable to make the deposit. In Vijay Prakash D. Mehta and Jawahar D. Mehta vs. Collector of Customs (Preventive), Bombay, the Supreme Court laid down that a right of appeal under a statute can be conditional one. The Supreme Court has in this case observed as under:- "Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant. It is not the law that adjudication by itself following the rules of natural justice would be violative of any right- Constitutional or statutory - without any right of appeal, as such. If the Statute gives a right to appeal upon certain conditions, it is upon fulfilment of those conditions that the right becomes vested and exercisable to the appellant." It will, therefore, be seen that statutory right can be conditional and if the condit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that they are scrupulously followed at least by the High Court whether at the principal seat or at the Bench. Therefore, where a statutory alternative remedy is available, it should be considered as such and should not be lightly ignored by the courts particularly when coordinate Benches have in similar circumstances required the litigant to persuade the alternative remedy. In a very recent decision, the Supreme Court has held that the Constitutional Court should insist upon the party to avail of an alternative remedy instead of invoking the extraordinary writ jurisdiction of the Court. The observations of the Supreme Court of India in the case of State of Himachal Pradesh vs. Raja Mahendra Pal & others, should be considered in extenso, which are as under:- "The learned counsel appearing for the appellant has vehemently argued that the writ petition filed was not maintainable as the High Court was not justified in entertaining the same and consequently granting the relief to the respondent No. 1. The rights of respondent No. 1, if any, are stated to be based upon a contract for which he was obliged to avail of the alternative efficacious remedy of filing a suit either f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the purpose of clothing itself with the power and jurisdiction under Article 226 of the Constitution. We are sure that if the High Court had considered the argument in the right perspective and in the light of various pronouncements of this Court, it would not have ventured to assume jurisdiction for the purposes of conferring the State largess of public money, upon an unscrupulous litigant who preferred his claim on his proclaimed assumption of being as important as the Government of the State and equal thereto. Despite holding that the High Court had wrongly assumed the jurisdiction in the facts of the case, as earlier noticed, we are not inclined the dismiss the writ petition of the respondent No. 1 on this ground at this stage because that is likely to result in miscarriage of justice on account of the lapse of time which may now result in the foreclosure of all other remedies which could be availed of by the alternative remedies available to the respondent admittedly not being efficacious at this stage has persuaded us to decide the claim of the respondent on merits. From the above quoted observations, it will be seen that the High Court should not take up a writ petition dire....
X X X X Extracts X X X X
X X X X Extracts X X X X
....;ble Supreme Court of India, it is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. It will be noted from the judgment that these observations were made after the case law on the point was discussed. Then their Lordships of the Supreme Court of India proceeded to deal with the provisions of the Sales Tax Act from Orissa State. Yet another decision of the Hon'ble Supreme Court of India, which may be noticed with due care and must be scrupulously observed as the appellate Court in Assistant Collector of Central Excise, Chandan Nagar, West Bengal vs. Dunlop India Ltd. and others The Supreme Court observed as under:- "Art. 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public in- jury and the vindication of public justice require it that recourse may be had t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ierarchy of tribunals where the question raised can be agitated and hence, there is no reason to permit the petitioner to by pass the remedy provided under the Act. In the case of Kota Bux Mfg. Co. vs. State of Raj., this Court held while dealing with notice u/s. 12 of the Rajasthan Sales Tax Act, 1954 that merely because a question of law is raised, the petitioner is not entitled to bypass the remedy of appeal. In the case of Lodha Fabrics & another vs. State of Rajasthan, it was held by this Court that whether caustic soda used by the petitioner was a part of manufacturing process or a raw material for dyeing and printing was essentially a question of fact and dismissal of the writ petition by the learned single Judge on the ground of availability of alternative remedy was proper. A Division Bench of this Court in M/s Orex India (P) Ltd. vs. The State of Rajasthan & another, decided on 27. 4. 2000 considered the constitutional validity of S. 2 (39) of the Rajasthan Sales Tax Act, 1994 and having found it valid, relegated the parties to the remedy of appeal. Thus, affirming the continuous view of this Court that alternative remedy under the provisions of the Sales Tax Act....