TaxTMI 
TaxTMI 
2019 (9) TMI 1153
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....hri Daksh Pareek, Shri Arjun Singh and Shri Karan Sachdev for appellant-Lava & Micromax in SAW, Nos.519/17, 520/17, 521/17, 522/17, 523/17, 524/17, 525/17 and 526/17., Shri Siddharth Ranka for appellant-Sony in SAW No.511/17, 513/17, 514/17, 515/17, 516/17 & 517/17 For Respondent(s): Shri R.B. Mathur with Shri Nikhil Simlote for respondents. ORDER PER HON'BLE MOHAMMAD RAFIQ, J. REPORTABLE All these appeals have been preferred against the judgement of the learned Single Judge dated 10.3.2017, whereby the writ petitions filed by the appellants were dismissed. The appellants in the writ petitions challenged the notices issued to them under Section 25, 26, 55 and 61 of the Rajasthan Value Added Tax, 2003 (for short-`the Act of 2003') as also the reassessment orders passed, on the basis of such notice in some of the cases, relying on the judgment of the Supreme Court in State of Punjab vs. Nokia India Pvt. Ltd.-(2014) 16 SCC 410. Some of the petitioners filed reply to the show cause notice and agitated those very arguments, which have been raised before this Court and in some of the cases, the assessment orders have been passed, therefore, after considering such issues, in the ....
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....mine the arguments on merits advanced by the learned counsel on both the sides would therefore arise only if we reverse the judgement of learned Single Judge and hold that writ petitions should have been directly entertained before this Court, and despite there being no findings rendered by learned Single Judge on merits of the case, instead of remanding the matter to single bench, and then decide to examine the matter on merits. We shall, therefore, first confine our examination to the correctness of the dismissal of the writ petitions on the premise of availability of the efficacious alternative remedy. In order, however, to understand the background in which the show cause notices were issued to the appellants to reopen the assessment already made, the narration of brief facts would not be out of order. The appellants are registered as dealers with the respondents under Act of 2003. Appellants are engaged in the business of sale of mobile phones, tablets, laptops etc. Bone of contention between the parties is that whether the charger/adapter, battery, earphone, data cable, which are sold along with mobile phone or laptop, in a composite box, against a single sale price, are li....
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....g of assessment is provided under Section 26 of the Act, which can be invoked only in the case of escaped assessment. Explanation to Section 26(1) of the Act provides that re-assessment under Section 26 cannot be resorted to include that part of the business, which has already been assessed or deemed to have been assessed, under the provisions of the Act. In terms of that provision, the assessing officer can reopen the assessment only if it has some reason to believe that the whole or any part of the turnover of a dealer has escaped assessment or has been under-assessed or has been assessed at a lower rate of tax than what was applicable. In the present case, the assessment for the period in dispute has been duly completed. Thus it cannot be said that there any escaped assessment. The Assessing Officer had no reason to believe to conclude about the escaped assessment. Reliance is placed on judgement of the Supreme Court in CIT vs. Kelvinator of India Ltd.-(2010) 2 SCC 723. Mere change of opinion cannot be considered as valid ground for reopening of assessment, argued the learned counsel. In support of this arguments, reliance is placed on judgement of the Supreme Court in Binani In....
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....aforesaid case of Nokia India Pvt. Ltd., supra, filed a review petition before the Supreme Court, which was also dismissed vide order dated 27.8.2015. Shri R.B. Mathur, learned counsel for the revenue has argued that while original assessment is made under Section 23 of the Act of 2003, but subsequent re-assessment after scrutiny in these matters, were made by invoking Section 24, 25 and 26 of the Act. While Section 23 provides for `self assessment', `assessment' under Section 24 is made after last date of furnishing of annual return for the year even when return has been furnished, it is subject to scrutiny as may be determined by the Commissioner, to verify its correctness. The `re-assessment' under Section 25 is made in case of avoidance or evasion of tax. Section 26 is invoked in the case of escaped assessment. All these will have to be determined on the basis of facts of a given case and may differ from case to case. It is open to the appellants to raise all such legal arguments, which they are seeking to make before this court, firstly before the appellate authority i.e. Deputy Commissioner (Appeals) and thereafter before the Rajasthan Tax Board and then finally before this....
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.... Info and submitted that in one of those matters, the Tax Board by upholding the argument of assessee, has set aside the reassessment order, thus nullifying the demand of tax and the interest as well as penalty. Subsequently, however, when the same issue cropped up before the Board in other 8 appeals, 4 appeals filed by M/s. Suresh Infotesh and 4 appeals filed by Assistant Commissioner, the Tax Board vide order dated 10.08.2018 has made a reference of the questions of law involved in those matters to its Full Bench for an authoritative decision. Since remedy of appeals are provided to the assessee under the VAT Act, which are equally efficacious and speedy remedy, especially when after 2003, there is no bar for the High Court to grant appropriate interim order of stay in sales tax revision. In fact, in one of the cases, the Tax Board has decided the matter against the revenue not only on the question of penalty and interest, but also on the question of tax and subsequently the Board has itself made reference to its Larger Bench on the issues raised in these appeals, which is pending. It therefore cannot be said that alternate remedy available under the Act is not effective and ef....
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....efore the only question was whether the Income-tax Officer had reason to believe that "there had been some omission or failure to disclose fully and truly all material facts necessary for the assessment" for any of these years in consequence of which the under-assessment took place. It was therefore held that the conditions precedent to the exercise of jurisdiction under Section 34 of the Income- tax Act did not exist and the Income-tax Officer had therefore no jurisdiction to issue the impugned notices under Section 34. Reliance is also placed on the judgement of Whirlpool Corporation, supra in which it was held that alternative remedy would not operate as an absolute bar in three contingencies namely, (i) where the Writ Petition has been filed for the enforcement of any of the fundamental rights or (ii) where there has been a violation of the principles of natural justice or (iii) where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. The judgement of Supreme Court in Raza Textile, supra has also been relied, in which it was held that the question whether the jurisdictional fact has been rightly decided or not is a question that is ....
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....ous that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment." The Supreme Court in Union of India vs. Guwahati Carbon Ltd.-(2012) 11 SCC 651 has held as under: "8. Before we discuss the correctness of the impugned order, we intend to remind ourselves the observations made by this Court in Munshi Ram vs. Municipal Committee, Chheharta, (1979) 3 SCC 83. In the said decision, this Court was pleased to observe that: (SCC p. 88, para 23). "23. ... when a revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all the other forums and modes of seeking remedy are excluded." In a rather recent judgment of the Supreme Court in Commissioner of Income-tax & Ors. vs. Chabbil Dass Agarwal- (2014) 1 SCC 603, it has been held that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is a....
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....ch of principles of natural justice or procedure required for decision has not been adopted. The Supreme Court in Chabbil Das Agarwal, supra, in para 15 and 16 of the report has held as under: "19. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statuto....
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....s a statutory forum of appeal on a question of law. That should not be abdicated and given a go bye by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating the aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction." In a very recently delivered judgement by the Supreme Court in Union of India (UOI) & Ors. vs. Coastal Container Transporters Association & Ors.-2019 (3) Scale 758 (SCC citation), in para 19 of the report, the Supreme Court held that the High Court has committed error in entertaining the writ petition under Article 226 of Constitution of India at the stage of show cause notices. Though there is no bar as such for entertaining the writ petitions at the stage of show cause notice, but it is settled by number of decisions of this Court (the Supreme Court), where writ petitions can be entertained at the show cause notice stage. Neither it is a case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain the writ petition at the stage of not....