TaxTMI 
TaxTMI 
2022 (5) TMI 640
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.... by the Agricultural Income Tax Officer under Section 5 (3) of the Bengal Agricultural Income Tax Act, 1944 and rectification order dated 8th August, 2016. For the sake of convenience WPA No. 4305 of 2022 is taken up and discussed. In this Writ Petition, Petitioner has challenged the impugned order of the first Appellate authority under Bengal Agricultural Income Tax Act, 1944, dated 26th March, 2022, passed on the Appeal of the petitioner filed under Section 34 (1) of the Bengal Agricultural Income Tax Act, 1944 confirming the assessment order dated 19th August, 2013 and rectification order dated 8th August, 2016 passed by the assessing officer. On perusal of records, pleadings, grounds and prayers made in the Writ Petition it appears that the petitioner itself at the first instance has chosen to challenge the assessment order in question before the first Appellate authority which has confirmed the said assessment order and instead of further challenging the same before the second Appellate authority which is West Bengal Taxation Tribunal, if so aggrieved, petitioner wants this Writ Court to indirectly interfere with the aforesaid assessment order by interfering wi....
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....may not have challenged the said assessment order before this Writ Court at the first instance and had gone to the first Appellate authority against the said assessment order in question and in spite of availability of further Appellate forum of West Bengal Taxation Tribunal against the impugned order of the first Appellate authority and there may not be any bar for the said Tribunal in adjudicating the issue involved and in granting the nature of relief asked for by it in the instant Writ Petition, still it can further challenge the impugned order of the first Appellate authority before the Writ Court instead of approaching the Tribunal. In support of its such contention, it relies on the following judgments: a) Aircel Ltd. v. Commercial Tax Officer [WP (Civil) Nos. 1055 and 1057 of 2013]; [2016 (56) GST 306 (SC)] b) UOI v. State of Haryana [2000 (10) SCC 482] @ p.3 c) Magadh Sugar and Energy Ltd. v. State of Bihar & Ors. [2021 SCC OnLine SC 801] @ para 29 (issue of jurisdiction is a pure question of law) Learned Advocate appearing for the respondents opposes this Writ Petition by submitting that this Writ Petition is not maintainable since the....
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....est Bengal Taxation Tribunal Act, 1987: Section 2 (e) "High Court" means the High Court at Calcutta. Section 2 (k) "specified State Act" means a State Act specified in the Schedule to this Act. It is to be noticed that the Bengal Agricultural Income Tax Act, 1944 is a specified in the Schedule to this Act. Section 2 (l) "State" means the State of West Bengal. Section 2 (n) "Tribunal" means the West Bengal Taxation Tribunal Constituted under Section 3. Section 5: "The Tribunal, save as expressly provided under any specified State Act and subject to the other provisions of this Act, shall, with effect from such date as may he appointed by the State Government by notification in this behalf, exercise jurisdiction, powers and authority in relation to all matters of adjudication or trial of any disputes, complaints or offences with respect to levy, assessment, collection and enforcement of any tax under any specified State Act and of matters connected therewith or incidental thereto: and no Court except the Supreme Court of India shall, with effect from such date, exercise any jurisdiction, powers or authority in the matter of adjudi....
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.... and deliver its judgment thereon containing the reasons on which such decision is founded." Section 8: (1) Subject to the other provisions of this Act, a person aggrieved by any order passed or action taken pertaining to any matter within the jurisdiction of the Tribunal may make an application to it for the redressal of his grievance on any of the grounds referred to in sub-section (3). Explanation.-For the purposes of this sub-section, "order" means an order made by any authority under any specified State Act and "action" means an action taken by any authority under any of the specified State Acts or by the State Government in the matter of, and in relation to, levy, assessment, collection and enforcement of any tax. (2) Every application under sub-section (I) shall he made within sixty days from the date of such order passed or action taken, as the case may be, or within such further time as may be allowed by the Tribunal for cause shown to its satisfaction, and shall be made in such form and accompanied by such documents or other evidence and by such fee as may be prescribed: Extraordinary jurisdiction. Provided that an application ....
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....ating to an application made under sub-section (1) unless- (a) copies of such application and of all documents in support of the plea for such interim order are duly furnished seven days in advance to the party against whom such application is made or proposed to be made; (b) such amount of tax, if any. involved in the matter or such amount of security as may be deemed adequate by the Tribunal to safeguard the interest of State revenue, is paid or furnished by the applicant; and (c) opportunity of being heard is given to the party against whom such application is made: Provided that the Tribunal may dispense with the requirement of clause (b) and pass an interim order as an exceptional measure if it is satisfied for reasons to be recorded in writing that it is necessary so to do for preventing any loss being caused to the applicant-which may dislocate, disrupt or lead to closure of his business, or which cannot be adequately compensated in money, but if the application referred to in sub-section (1) is not disposed of within a period of six months from the date when the order was made, the interim order shall, if it is not vacated earlier, stand ....
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.... the majority, but if the members are equally divided, they shall state the point or points on which they differ, and the case shall be referred by the President of the Appellate Tribunal for hearing on such point or points to one or more of the members of the Appellate Tribunal; and such point or points shall be decided according to the majority of the members of the Appellate Tribunal who heard the case including those who first heard it: Provided that if at any time, the Appellate Tribunal consists of only two members, the decision of the Appellate Tribunal shall be that of the President in such case. (5) The Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders as it thinks fit, and shall communicate such orders to the assessee and to the Commissioner. (6) Save as provided in section 63 the orders passed by the Appellate Tribunal on appeal shall be final. (7) Where an appeal is made to the Appellate Tribunal under this section the costs shall be in the discretion of the said Tribunal. Relevant paragraphs from the judgment of L. Chandrakumar (supra) are quoted hereinbelow: Further, a....
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.... constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal." "95. The directions issued by us in respect of making the decisions of Tribunals amenable to scrutiny before a Division Bench of the respective High Courts will, however, come into effect prospectively i.e. will apply to decisions rendered hereafter. To maintain the sanctity of judicial proceedings, we have invoked the doctrine of prospective over-ruling so as not to disturb the procedure in relation to decisions already rendered." ........................................ "100. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all o....
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.... (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation. 12. In the present case, none of the above exceptions was established. There was, in fact, no violation of the principles of natural justice since a notice was served on the person in charge of the conveyance. In this backdrop, it was not appropriate for the High Court to entertain a writ petition. The assessment of facts would have to be carried out by the appellate authority. As a matter of fact, the High Court has while doing this exercise proceeded on the basis of surmises. However, since we are inclined to relegate the respondent to the pursuit of the alternate statutory remedy under Section 107, this Court makes no observation on the merits of the case of the respondent." Considering the submission of the parties, facts as appear from record relevant provisions of law under West Bengal Taxation Tribunal Act, 1987 and Bengal Agricultural Income Tax Act, 1944 and decisions relied upon by the parties and in view of the peculiar facts and circumstances involved in these Writ Petitio....
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....n this Writ Petition. (iii) On perusal of relevant provisions under the West Bengal Taxation Tribunal Act, 1987, I find that as per Section 36 of the Bengal Agricultural Income Tax Act. 1944, West Bengal Taxation Tribunal is the competent forum for adjudicating the nature of issues arise out of the impugned orders of the first Appellate authority and the nature of reliefs petitioner has sought in these Writ Petitions. Under The West Bengal Taxation Tribunal Act, 1987, the Tribunal has got exclusive jurisdiction to entertain the appeal relating to levy of tax in any assessment under the Bengal Agricultural Income Tax Act, 1944 and the impugned order of the first Appellate authority passed under Section 32 or 35 of the said Agricultural Income Tax Act. I further find on perusal of relevant provisions of The West Bengal Taxation Tribunal Act, 1987, that petitioner has got speedy and efficacious remedy and even can get interim relief also. (iv) I am not entertaining this Writ Petition by taking into consideration the law laid down by the Hon'ble Supreme Court in the case of L. Chandrakumar (supra) which in my considered opinion is applicable to the facts and circumsta....