TaxTMI 
TaxTMI 
2019 (1) TMI 1217
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....3, or (b) aggrieved by the seizure of motor vehicle made under Section 16, or (c) aggrieved by any order passed under this Act, may, within the prescribed time and in the prescribed manner appeal to the prescribed authority, who shall, after giving such person and the Taxation Authority an opportunity of being heard, dispose of the said appeal and the decision thereon shall be final: Provided that no appeal shall be entertained unless the amount of tax and penalty levied, in respect of which the appeal has been preferred has been paid. Rule 18. Appeals.- (1) XX XX XX (2) Every appeal shall- (a) XX XX XX (b) XX XX XX (c) XX XX XX (d) XX XX XX; (e) XX XX XX (f) XX XX XX (g) specify the amount admitted by the appellant to be due or refundable; (h) give the proof of payment of tax in respect of which appeal has been preferred; (i) XXXX XX (j) XX XX XX (k) XX XX XX (3) XX XX XX (4) XX XX XX (5) If the memorandum of appeal does not comply with all or any of the requirements of sub-rule (2) of this rule the appeal may be summarily rejected : Provided that no appeal shall be summarily rejected under this sub-rule unless the appellant is given such ....
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.... we are of the view that the writ petition has been wrongly entertained without giving sufficient opportunity to the respondents no.1 to 4, secondly, this Court has no territorial jurisdiction to try the writ petition and lastly the order which was impugned in the writ petition is appealable under Section 20 of the M.P. Motoryan Karadhan Adhiniyam, 1991. The proper recourse for the respondent No.5 is to challenge the order by filing an appeal before the Appellate Authority. Rule of exclusion of writ jurisdiction due to availability of alternative remedy is a rule of discretion and not one of compulsion. Writ Court may exercise discretionary jurisdiction or judicial review in at least three contingencies, where writ petition seeks enforcement of fundamental rights, where there is a failure of principles of natural justice and where proceedings are wholly without jurisdiction. None of any of the above three contingencies are satisfied in the present case. Thus, the respondent No.5 is directed to take recourse to the remedy available under Section 20 of the 1991 Act. For the above mentioned reason, the impugned order passed in W.P.No.8437/2013 on 1/08/2013 is set aside. The writ a....
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.... 20 of Adhiniyam 1991 and Rule 18 of Rules 1991 which provide for appeal against the order of assessment. (8) Petitioner contradicts the submissions made on behalf of the State as to maintainability. It is urged that since there was no specific challenge to the proviso to Section 20 of Adhiniyam 1991 and Rule 18 of the Rules 1991 in earlier petition filed by the Jabalpur Bus Operators' Association wherein the challenge was confined to validity on the ground of "Colourable Legislation" and on the ground of absence of machinery for the assessment, petitioner is not estopped from challenging the validity to provision to Section 20 and Rule 18, as the petitioner was not a party to earlier litigation. Reliance is placed on the decisions in "Zameer Ahmed Latifur Rehman Sheikh Vs. State of Maharashtra & Ors [AIR 2010 SC 2633]" (9) True it may be that the petitioner was not a party to the proceedings in Jabalpur Bus Operators Association (supra), wherein the constitutional validity of the Adhiniyam, 1991 was questioned. However, equally true it is that the challenge to the constitutional validity was by the Bus Operators Association in representative capacity; and it was open for the....
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....or the petitioners urged that the questions which are being raised in the present proceedings were neither raised nor considered by this Court in Punjab Tin Supply Company's case, therefore it is open to them to question the validity of Section 3 and the Notification dated September 24, 1974. This submission is contrary to the principles of res judicata and it further ignores the binding effect of a decision of this Court under Article 141 of the Constitution. The binding effect of a decision of this Court does not depend upon whether a particular argument was considered or not, provided the point with reference to which the argument is advanced subsequently was actually decided in the earlier decision, See Smt. Somavanti and Ors. v. State of Punjab & Ors., [1963] 2 SCR 774; T. Govindaraja Mudaliar etc. v. State of Tamil Nadu & Ors., [1973] 1 SCC 336 and Anil Kumar Neotia and Ors. v. Union of India & Others, [1988] 2 SCC 587. It is therefore no longer open to the petitioner-tenants to challenge the validity of Section 3 of the Act and the impugned Notification dated September 24, 1974 on the ground that some points had not been urged or considered in Punjab Tin Supply Company&#....
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....the appropriate authority to the appellant, the period of sixty days shall commence from the date of receipt of the copy of the order by the appellant and in the case of an appeal against any other order made under this Act, the time spent in obtaining the certified copy of the order shall be excluded in computing the period of sixty days." There cannot be any dispute that right of appeal is the creature of the statute and has to be exercised within the limits and according to the procedure provided by law. It is filed for invoking the powers of a superior court to redress the error of court below, if any. No right of appeal can be conferred except by express words. An appeal, for its maintainability, must have a clear authority of law. Sub-section (5) of Section 39 of the Act vests a discretion in the appellate authority to entertain the appeal if it is filed within sixty days and the amount of tax assessed along with penalty and interest, if any, recoverable from the persons has been paid. The aforesaid restriction is subject to the proviso conferring discretion upon the appellate authority to dispense with the deposit of the amount only on proof of the fact that the appellant ....
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....ording nor in view of the spirit of the Punjab and Haryana Acts is possible to hold that the Appellate Authority should see the prima facie nature of the case while hearing the stay matter. (f) The factum of tax assessed being illegal cannot be a relevant consideration for grant of stay by an appellate authority. (g) The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India in rarest of the rare cases in the given facts and circumstances, can grant stay and waive the condition of pre-deposit of tax and the existing alternative remedy in such circumstances would be no ground to refuse interference." 11. The Act has been enacted and the right of appeal provided with a dual purpose of protecting the interests of the assessee and also to safeguard the interests of the Revenue. The provision appears to have been made to explore further sources for raising Revenue of the State. This Court in CCE. vs. Dunlop India Ltd. [1985 (1) SCC 260] observed that "..No governmental business or for that matter no business of any kind can be run on mere bank guarantees. Liquid cash is necessary for the running of a Government as indeed any other enterprise. W....
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....er to approach the Tribunal at the first instance of proceedings, captioned as appeal, renders the remedy illusory and nugatory." Furthermore, the condition of pre-deposit was found bad rendering the remedy illusory for the following reasons: "(i) it is imposed while approaching the adjudicating authority of the first instance, not in appeal; (ii) there is no determination of the amount due as yet; (iii) the secured assets or its management with transferable interest is already taken over and under control of the secured creditor; (iv) no special reason for double security in respect of an amount yet to be determined and settled; (v) 75% of the amount claimed by no means would be a meager amount; (vi) it will leave the borrower in a position where it would not be possible for him to raise any funds to make deposit of 75% of the undetermined demand. (19) Present is not the case as that of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The condition of pre-deposit is in an appeal and not before the adjudicating authority. That there is determination of amount. That the vehicle in question is not taken over/confiscat....