THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE N.TUKARAMJI
W.P. No. 30910 of 2023
ORDER:(per Hon'ble Sri Justice P.SAM KOSHY)
Heard Mr.Karan Talwar, learned counsel for the petitioner,
Mr.Dominic Fernandis, learned Senior Standing Counsel, appearing
for respondent Nos.1 and 2, Ms.C.Rohini Smitha, learned Assistant
Government Pleader appearing for respondent No.3 and Mr.B.Mukharjee, learned counsel appearing on behalf of Mr.Gadi Praveen Kumar, learned Deputy Solicitor General of India for respondent No.5. Perused the material available on record.
2. The challenge in the present writ petition is to the order in original passed by the 1st respondent vide its order dated 28.07.2023.
3. Perusal of the record would show that the authority concerned after the issuance of show cause notice granted ample time to the petitioner to represent and defend himself before the authorities. In this regard, it would be relevant at this juncture to reproduce to the contents of paragraph No.7 of the impugned order passed by the 1st respondent.
Paragraph No.7. The tax payer did not file their written reply to the subject show cause notice even after a lapse of more than one year nor attended the personal hearing opportunities to defend their case. The statutory 2 limit for the assessee to file a reply to SCN is thirty (30) days as mentioned in the SCN itself. However, following the principles of natural justice, personal hearing opportunities were granted to the tax payer on 18.05.2023; 01.06.2023 and 26.06.2023 to represent their case and intimation vide this officer letters of even no. was sent through e-mails to the registered mail address of the tax payer as per the office records for which no reply was received in this office. However, the taxpayer, vide their letter dated 27.06.2023 to this office letter of even no. dated 22.06.2023, requested to reschedule the hearing after 20 days. Considering the taxpayer's request, the final hearing opportunity was fixed on 18.07.2023. Even upon providing 3 opportunities along with additional opportunity, as requested by them, of personal hearing, they did not avail the same to defend their case nor furnished any reply to the impugned show cause notice.
In the teeth of the said specific finding of the fact by the 1st respondent, we are of the considered opinion that it cannot be said that the impugned order is one which is passed by the authority concerned is in violation of principles of natural justice.
4. The second question for consideration raised by the petitioner was that the authority concerned has not properly appreciated the statement given by the Managing Director of the petitioner's establishment.
5. Perusal of the impugned order, particularly, paragraph Nos.12 and 13 would reflect that the 1st respondent while passing the impugned 3 order has infact considered the statement of the Managing Director of the petitioner's establishment. Whether the statement has been properly appreciated or has been wrongly appreciated in the opinion of this Court is not one which can be subjected to scrutiny in exercise of powers under Article 226 of the Constitution of India. Particularly when the petitioner have a statutory alternative remedy of appeal under Section 107 of the Goods and Services Tax Act itself.
6. Recently, the Hon'ble Supreme Court in a tax matter in which the High Court had entertained a writ petition under Article 226 of the Constitution of India, reported in the case of State of Madhya Pradesh v. Commercial Engineers & Body Building Co. Ltd 1., has held as under in paragraph Nos.4 to 7:
Paragraph No.4: Having heard learned counsel for the respective parties at length on the entertainability of the writ petition under Article 226 of the Constitution of India by the High Court against the Assessment Order and the reasoning given by the High Court while entertaining the writ petition against the Assessment Order despite the statutory remedy by way of an appeal available, we are of the opinion that the High Court ought not to have entertained the writ petition under Article 226 of the Constitution of India challenging the Assessment Order denying the Input rebate against which a 1 2022 (382) E.L.T. 437 (S.C) [14-10-2022].4
statutory appeal would be available under Section 46(1) of the MP VAT Act, 2002.
Paragraph No.5: While entertaining the writ petition under Article 226 of the Constitution of India challenging the Assessment Order denying the Input rebate, the High Court has observed that there are no disputed question of facts arise and it is a question to be decided on admitted facts for which no dispute or enquiry into factual aspects of the matter is called for. The aforesaid can hardly be a good/valid ground to entertain the writ petition under Article 226 of the Constitution of India challenging the Assessment Order denying the Input rebate against which a statutory remedy of appeal was available.
Paragraph No.6: At this stage, a recent decision of this Court in the case of The State of Maharashtra and Others v. Greatship (India) Limited (Civil Appeal No. 4956 of 2022, decided on 20.09.2022) is required to be referred to. After taking into consideration the earlier decision of this Court in the case of United Bank of India v. Satyawati Tondon and others, reported in (2010) 8 SCC 110, it is observed and held that in a tax matter when a statutory remedy of appeal is available, the High Court ought not to have entertained the writ petition under Article 226 of the Constitution of India against the Assessment Order by-passing the statutory remedy of appeal.
Paragraph No.7: In view of the above, the impugned judgment and order passed by the High Court entertaining the writ petition under Article 226 of the Constitution of India against the Assessment Order denying the benefit of Input rebate is unsustainable and the same deserves to be quashed and set aside and the original writ petitioner is to be relegated to prefer an appeal against the Assessment Order dated 28.02.2015 passed by the Divisional Deputy Commissioner, Commercial Tax, 5 Jabalpur, which may be available under Section 46(1) of the MP VAT Act, 2002.
7. For the aforesaid reasons, we are not inclined to entertain the instant writ petition. Accordingly, this Writ Petition stands rejected only on the ground of there being a statutory alternative remedy available to the petitioner. Reserving the right of the petitioner to avail the same. The questions of law raised by the petitioner in the present case is left open to be decided by the authorities concerned in an appropriate proceedings.
8. As a sequel, miscellaneous applications pending if any in this writ petition, shall stand closed. No order as to costs.
_________________ P.SAM KOSHY, J _________________ N.TUKARAMJI, J 07.11.2023 Aqs