2023 (4) TMI 653

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....ection in the nature of certiorari quashing impugned order dated 30.12.2022, Annexure P- 1, determining the purported demand of tax and penalties in a most capricious and arbitrary manner and also the notice of demand served along." 2. Learned counsel for the petitioner has submitted that the order passed by respondent No.2 is totally arbitrary and against the principles of natural justice. Hence, the petitioner was entitled to forego the statutory remedy of appeal and approach this Court under Article 226 of the Constitution of India. Respondent No.2 has failed to follow the mandatory provisions of Section 21 of the Himachal Pradesh Value Added Tax Act, 2005 (hereinafter referred as the 'Act') and Rule 67, 68 and 69 of the Himachal Prad....

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....d) the vires of a legislation is challenged; (iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law; (v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and (vi) In cases where there are disputed questions of fact,....

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....1, titled as, Novelty Merchants Private Limited vs. National Faceless Assessment Centre Delhi (Earlier National E-Assessment Centre, Delhi) & others, wherein, it was held as under:- "It is a settled law that when there is a violation of principles of natural justice, the availability of an appellate remedy does not operate as a bar to the maintainability of the writ petition." 6. Petitioner has filed the petition challenging the Tax Demand Notice/Assessment Order dated 30.12.2022 (Annexure P-1), issued by the Assessing Authority, Baddi, District Solan, H.P. under Section 21 of Himachal Pradesh Value Added Tax Act, 2005 (for short, the Act) with respect to period from May, 2022 to 16.12.2022. 7. Section 45 of the Act reads as ....

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.... appeal or revision, shall be final. 4) No appeal shall be entertained unless it is filed within sixty days from the date of communication of the order appealed against, or such longer period as the Appellate Authority may allow, for reasons to be recorded in writing. (5) No appeal under sub-section (1) shall be entertained by an Appellate Authority unless such appeal is accompanied by satisfactory proof of the payment of the tax (including interest payable) or of the penalty, if any, imposed or both as the case may be: Provided that if such Authority is satisfied that the dealer is unable to pay the tax (including interest payable) assessed or the penalty, if any, imposed or both, he may, for reasons to be record....