TaxTMI 
TaxTMI 
2022 (9) TMI 531
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....d by the Tribunal, the petitioner had remedy of filing an application before the Tribunal seeking reference of question(s) of law, arising out of the order passed by the Tribunal, to this Court and in case the aforesaid application is not allowed, the remedy is before this Court for a direction to the Tribunal to refer the question(s) of law so raised, to this Court. The aforesaid Section provides for limitation for filing of such an application to the Tribunal. 04. We have heard learned counsel for the parties on the preliminary objection raised by the learned Advocate General on the maintainability of the writ petition and perused the paper-book. 05. Relevant provisions of Section 12-D of the Act are reproduced hereunder: "12-D. Statement of case to the High Court.- Within sixty days from the date of communication of the order of the Tribunal, passed in appeal being an order which affects the liability of any person to pay tax or penalty or interest or to forfeiture or any sum or which effects the recovery from any person of any amount under Section 12-A that person or the Commissioner, Sales Tax having jurisdiction over the whole of the State may by application in....
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.... Provided further that, if in exercise of its power under this sub-section, the Tribunal refuses to state the case which it has been required to do, on the ground that no question of law arises that person or the Commissioner may within ninety days of such refusal, either withdraw his application and if he does so any fee paid shall be refunded, or apply to the High Court against such refusal. (2) If upon receipt of an application under sub-section (1) the High Court is not satisfied as to the correctness of the decision of the Tribunal, it may require the Tribunal to state the case and refer it, and accordingly on receipt of any such requisition the Tribunal shall state the case and refer to the High Court. (3) If the High Court is not satisfied that the statements in the case referred under this section are sufficient to enable it to determine the question raised thereby, it may refer the case back to the Tribunal to make such additions thereto or alternations therein, as the High Court may direct in that behalf. (4) The High Court upon the hearing of any such case, shall decide the question of law raised thereby, and shall deliver its judgment there....
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....essing as well as Appellate Authority, were set aside. 13. The issue which is required to be considered by this Court at this stage is as to what is the remedy available to the petitioner to impugn the orders passed by the Tribunal. And further, as to whether bypassing that remedy, writ petition can be filed. 14. As per the scheme of the Act, orders of the assessment are passed under Section 7(10) of the Act against which appeal lies to the 1st Appellate Authority under Section 11 of the Act. Section 12 of the Act deals with the appeals to the Tribunal and the remedies available thereafter. 15. A perusal of section 12-D of the Act shows that after the appeal is decided by the Tribunal, any party aggrieved of against the same can file application to the Tribunal seeking reference of question(s) of law arising out of the order of the Tribunal, to this Court for its opinion. The period for filing such an application has been prescribed in Section 12-D(1) as 90 days. The same is extendable further by 30 days. 16. Section 12-D of the Act further provides that in case the Tribunal rejects the application seeking reference of question(s) of law arising ....
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....er as per Rules and circulars issue by Hon'ble Chief Justice, tax matters used to be listed before Single Judge. That is why initially the writ petition was listed before Single Bench. However, later on with changes made for listing of cases of different categories, the tax matters are listed before Division Bench only. This is how the matter has been listed before Division Bench. 21. In our view the preliminary objection raised by learned counsel for the respondent No. 1 is sustainable as the factum of availability of alternative remedy of filing an application before the Tribunal for referring the questions of law arising out of the order of the Tribunal was and is available to the petitioner. Instead of availing that remedy the State filed the present petition in this Court. Though the argument raised by learned counsel for the respondent No 1 was that it was to cover up delay as the period for filing application before the Tribunal had expired, however, we are not going into that argument. But the fact is not denied that there was and is a remedy available, subject to the conditions attached. 22. The argument that the writ petition has been filed because a leg....