TaxTMI 
TaxTMI 
2020 (8) TMI 530
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....e Petitioner's case and after going into the legality and validity thereof forthwith quash and set aside the Assessment Order dated 23.03.2020 passed by the Respondent No.4; (b) this Hon'ble Court be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction under Article 226 and 227 of the Constitution of India, ordering and directing the Respondents, their subordinates servants and agents to forthwith (i) withdraw and/or cancel Order dated 23.03.2020 passed by the Respondent No.4 and (ii) refrain from taking any further proceedings or steps in furtherance of and/or in implementation of the Order dated 23.03.2020 passed by the Respondent No.4 for recovery of the amounts so confirmed pending the hearing and final disposal of this Petition, (c ) That pending hearing and final disposal of the above Petition, by an interim order and injunction of this Hon'ble Court, this Hon'ble Court be pleased to (i) stay the operation and effect of the impugned Orders dated 23.03.2020 and (ii) restrain the Respondents, their subordinate servants and agents from taking any further proceedings or steps in....
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....d 23rd March, 2020 assessing the total taxable turnover of the writ applicant at Rs. 2,89,99,95,224/- and raised demand of tax to the tune of Rs. 43,49,99,284/- along with interest to the tune of Rs. 26,05,21,888/- and also imposed penalty at Rs. 18,35,95,411/- 2.8 Being dissatisfied with the impugned assessment order passed by the respondent No.4, referred to above, the writ applicant is here before this Court with the present writ application. 3. Submissions on behalf of the writ applicant; 3.1 Mr. Prakash Shah, the learned senior counsel assisted by Mr. Dhaval Shah, the learned counsel appearing for the writ applicant vehemently submitted that the impugned order of assessment has been passed in gross violation of the principles of natural justice inasmuch as the Assessing Officer declined to even look into the judgments of the Supreme Court and this High Court on various issues. Mr. Shah would submit that he is very much conscious of the fact that the impugned assessment order is appealable as a statutory appeal has been provided under the GVAT Act before the First Appellate Authority. However, as the impugned assessment order is in gross violation of the principles of ....
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....ssment order is not tenable in law to the extent it seeks to levy VAT on the value of the services provided. Mr. Shah further submitted that taxing the construction items under the residuary entry at the highest rate is contrary to the judgment of the Supreme Court in the case of State of Karnataka vs. Durga Projects, 2018 (10) GSTL 513 (SC). 3.5 Mr. Shah would submit that non-consideration of the submissions canvassed on behalf of the writ applicant not only demonstrates non-application of mind but also resulted in a serious miscarriage of justice. Mr. Shah, in the last, submitted that as held by this High Court in the case of U.M. Cables vs. Union of India, reported in 2017 347 ELT 78 (Guj.) and Larsen & Toubro Ltd. vs. Union of India, 2017 (52) STR 457 (Guj.) , despite the existence of alternate remedy in the form of a statutory appeal, a writ application can be entertained if the impugned order passed by the authority is wholly without jurisdiction or against the principles of natural justice or contrary to the statutory provisions of law. In such circumstances, referred to above, Mr. Shah prays that there being merit in his writ application, the same may be allowed and the ....
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....(for short "the GVAT Act") , there is a hierarchy of authorities before which the writ applicant can get adequate redress against the wrongful acts complained of. We first look into Section 73 of the Act, 2003, which reads thus; "73. Appeal (1) An appeal from every original order, not being an order mentioned in section 74, passed under this Act or the rules, shall lie,- (a) If the order is made by a an Assistant Commissioner or Commercial Tax Officer, or any other officer subordinate thereto, to the Deputy Commissioner; (b) If the order is made by a Deputy Commissioner, to the Joint Commissioner; (c) If the order is made by a joint Commissioner, Additional Commissioner or Commissioner, to the Tribunal. (2) In the case of an order passed in appeal by a Deputy Commissioner or, as the case may be, by a Joint Commissioner, a second appeal shall lie to the Tribunal. (3) Subject to the provisions of section 84, no appeal shall be entertained unless it is filed within sixty days from the date of communication of the order appealed against. (4) No appeal against an order of assessment shall ordinarily be entertained b....
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....inks just and proper. (2) Where an appeal lies under section 73 and no appeal has been filed, no proceedings in revision under this section shall be entertained upon application: Provided that the proceedings in revision may be entertained upon an application where the applicant satisfies the Commissioner that he had sufficient cause for not preferring an appeal against the order in respect of which an application for revision is made. (3) No order shall be passed under this section which adversely affects any person, unless such person has been given reasonable opportunity of being heard.[****] (4) Where the Commissioner or the Tribunal rejects any application for revision under this section, the Commissioner or, as the case may be the Tribunal shall record the reasons for such rejection." 8. Section 78 provides for appeal to the High Court. Section 78 read thus; "[78. Appeal to High Court. - (1) An appeal shall lie to the High Court from Court every order passed in appeal by the Tribunal, if the High Court is satisfied that the case-involves a substantial question of law. (2) In an appeal under this section, the memorandum of appeal....
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.... the case of Titaghur Paper Mills Co. Ltd. & Anr. vs. State of Orissa & Ors., 1983 (2) SCC 433, wherein it is observed 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 must only be availed of. In para-11, the Supreme Court observed thus; "11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under subsection (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under subsection (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a righ....
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..... We may refer to and rely upon the observations made by the Supreme Court in Asst. Commissioner (Ct) Ltu, Kakinada (supra), as contained in para-11; "11. In the backdrop of these facts, the central question is: whether the High Court ought to have entertained the writ petition filed by the respondent? As regards the power of the High Court to issue directions, orders or writs in exercise of its jurisdiction under Article 226 of the Constitution of India, the same is no more res integra. Even though the High Court can entertain a writ petition against any order or direction passed/action taken by the State under Article 226 of the Constitution, it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law (see Baburam Prakash Chandra Maheshwari vs. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar8 and also Nivedita Sharma vs. Cellular Operators Association of India & Ors.). In Thansingh Nathmal & Ors. vs. Superintendent of Taxes, Dhubri & Ors., the Constitution Bench of this Court made it amply clear that although the power of the High Court under Article 226 of the Constitu....
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....er the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up." (emphasis supplied)" 12. We may also refer to and rely upon the decision of the Supreme Court in the case of Commissioner of Income Tax vs. Chhabil Dass Agrawal (supra), more particularly, the observations as under; "15. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdi....
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....person and observed: (AIR p. 1423, para 7). "7. ... The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up." 13. We should not ignore the observations made by the Supreme Court in Para-19 of Chhabil Dass (supra). We may quote thus; "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 provi....