M/S New Jeewan Bus Service vs The State Of Chhattisgarh
2022 Latest Caselaw 3219 Chatt

                                 -1-




                                                                  NAFR

             HIGH COURT of CHHATTISGARH, BILASPUR

               Order Reserved on 23.03.2022
              Order Delivered on 04.05.2022

                       WPT No. 13 of 2022
  M/s New Jeewan Bus Service, Prop: Akash Deep Singh Gill S/o Shri
  Lakhwant Singh Gill, Aged 29 Years, R/o New Bus Stand, Pandary,
  Raipur (C.G.)
                                                         ---- Petitioner
                              Versus
1. The State of Chhattisgarh Through- Principal Secretary, Department
   of Transport Mahanadi Bhawan, Mantralaya, New Raipur (C.G.)
2. The Taxation Authority/R.T.O. Raipur (C.G.)
                                                     ---- Respondents

WPT No. 14 of 2022 M/s New Jeewan Bus Service, Prop: Akash Deep Singh Gill S/o Shri Lakhwant Singh Gill, Aged 29 Years, R/o New Bus Stand, Pandary, Raipur Chhattisgarh, District : Raipur, Chhattisgarh

---- Petitioner Versus

1. The State of Chhattisgarh Through Principal Secretary, Department Of Transport, Mahanadi Bhawan, Mantralaya, New Raipur Chhattisgarh, District : Raipur, Chhattisgarh

2. The Taxation Authority/R.T.O. Raipur Chhattisgarh, District : Raipur, Chhattisgarh

---- Respondent

For Petitioner : Mr. Brajesh Kumar Dubey, Advocate For Res./State : Ms. Richa Shukla, Dy. Govt. Advocate

S.B.: Hon'ble Shri Parth Prateem Sahu, Judge CAV Order

1. The petitioner is running a transport business. He is owner of

the buses and in these writ petitions, two buses bearing Deluxe

Vehicle No. CG-04-EA-0167 of 2015 make and CG-04-EA- 0166

of 2015 make are subject buses against which respondents

have passed two different orders on 02.12.2021 in case No. 8/eks-

;k- [email protected] and case No. 7/eks- ;k- [email protected] imposing the

diference of tax liability, penalty and interest thereupon. In both

the petitions, common reliefs have been sought, which read as

under :

"10.1 That this Hon'ble Court may be pleased

to kindly allow this petition by issuing writ of

certiorari or any suitable writ, order and

direction to quashing the impugned order dated

02.12.2021 (Annexure P-1) of Respondent No.2

in the interest of justice.

10.2 Any other relief/order deems fit and

proper in the facts and circumstances of the

case may kindly be passed."

2. In both the writ petitions, common grounds are raised. Hence,

both these writ petitions are being heard together and disposed

off by common order.

3. Learned counsel for the petitioners would submit that the

petitioner is owner of the aforementioned buses registered

under the Motor Vehicles Act, 1988 (for short " the Act of 1988")

and MP/CG Motoryan Karadhan Adhiniyam, 1991 (for short

"Adhiniyam 1991"). Specification of the seats and sleepers in the

buses were entered in the registration certificate/book after its

verification i.e 5 + 20 sleepers (Deluxe seats). The respondents

have issued letter/notice dated 12.03.2021 to the petitioner

mentioning amount of tax and penalty. Hence, it cannot be said

that the notice was issued under Rule 15 of the Chhattisgarh

Motoryan Karadhan Rules, 1991 (for short "Rules of 1991") or

under Rule 6-A (3) of the Rules of 1991. It is contended that the

order impugned (Annexure P-1) is passed without issuing

statutory notice to the petitioner, without providing opportunity of

hearing and, hence, the impugned order is passed in violation of

principles of natural justice. Section 8 of Adhiniyam 1991

prescribes for the filing of declaration and determination of tax

payable. Section 8 (3) of Adhiniyam 1991 mandates upon the

Taxation Authority to make an inquiry upon submission of

declaration under sub-Section (1) of Section 8 and determining

tax only after providing opportunity of hearing to the owner of the

vehicle. In sub-Section (6) of Section 8 of Adhiniyam 1991 also,

opportunity of hearing before imposition of penalty is provided.

The respondents have not given any opportunity of hearing as

provided under the Adhiniyam 1991. Referring to letter/notice

dated 12.03.2021 (Annexure P-2), he submits that the Taxation

Authority has already determined the tax penalty and interest.

Hence, it cannot be sad to be a notice as envisaged under

Section 8 of the Adhiniyam 1991. As the respondents authority

have not provided an opportunity of hearing before determining

the tax, penalty and interest, impugned order passed is in

violation of principles of natural justice. Hence, it may be

quashed/set aside. Learned counsel for the petitioner contended

that under Rule 15 of the Rules of 1991, notice is required to be

issued in prescribed Form i.e. Form 'E-2'. Annexure P-2 is not

the Form 'E-2'. Hence, it cannot be said to be a notice issued for

recovery of tax. Under Rule 6-A also, notice is required to be

issued in Form 'E-2'. As notice has not been issued in Form 'E-

2', the entire proceedings initiated by respondent- Taxation

Authority in passing the impugned order is vitiated. In support of

his contention, he places reliance upon the order passed in WP

No.4620 of 2005 (South Eastern Coalfields Ltd. Company and

Anr. Vs. State of Chhattisgarh and Anr .) decided on 14.10.2014,

Whirlpool Corporation Vs. The Registrar of Trade Marks,

Mumbai & Ors. (AIR 1999 SC 22), Union of India and Anr.

Vs. Guwahati Carbon Ltd. 2012 (11) SCC 691, WPT No.63

of 2012 (Ms. Mahadev Transport Service Vs. State of

Chhattisgarh & Ors) decided on 8th July 2013, Surguja Raigarh

Roadways (Pvt.) Ltd., Ambikapur Vs. The Tax Officer

(RTO), Bilaspur & Ors. 1973 MPLJ 1019, Bharat Bushan

Chawla Vs. The State of MP (AIR 1993 MP 241), Sobhagmal

Kamriya Vs. State of Rajasthan (AIR 1997 Raj. 07), WP No.

4620 of 2005 (South Eastern Coalfields Ltd.Co. Vs. The State

of Chhattisgarh, Sharat Kumar Barpanda Vs. State of

Chhattisgarh (AIR 2017 CG 15).

4. Learned counsel for the respondents/State opposing the

submission of counsel for the petitioner, raises preliminary

objection with respect to maintainability of writ petition. She

submits that order impugned (Annexure P-1) is appealable

under Section 20 of the Adhiniyam 1991. As there is efficacious

alternative remedy available for redressal of grievance under the

statute, writ petition under Article 226 of the Constitution of India

is not maintainable. She places reliance upon the judgment of

Hon'ble Supreme Court in case of The Assistant

Commissioner of State Tax and Ors. Vs. M/s. Commercial

Steel Limited (Civil Appeal No. 5121 of 2021) decided on

03.09.2021. Learned counsel for the State vehemently opposes

the submission of learned counsel for the petitioner on merits

also that the order impugned (Annexure P-1) passed without

issuance of notice and not providing opportunity of hearing to

petitioner. She submits that respondent authority received a

complaint against the buses run by petitioner. Complaint was

filed by Kanker Roadways on 31.12.2019. Based upon which

notice was issued to the petitioner on 12.3.2021. The petitioner

himself appeared on the date of hearing and submitted its reply

vide Annexure P-9 on 22.3.2021, as appearing from Annexure

P-10. The amount of tax, penalty and interest mentioned in the

notice is proposed liability of tax, penalty and interest therefore it

is required to be mentioned as per Form 'E-2'. Respondents

authority after considering the written reply submitted by the

petitioner and hearing him and further conducting verification of

said buses have passed impugned order. Hence, it cannot be

said that notice as required under Section 8 of the Adhiniyam

1991 is not issued and thereby opportunity of hearing was not

provided to the petitioner. This submission of learned counsel for

the petitioner of non-issuance of notice is contrary to the facts

and documents available in record. She further submits that

contention of learned counsel for the petitioner that in the

letter/notice, the authority have determined the tax, penalty and

interest, hence, it cannot be treated to be a notice under Section

8 of the Adhiniyam 1991, is also not correct. The amount of tax,

penalty and interest mentioned in the notice is proposed tax

liability with penalty and interest mentioned separately. The final

determination of the tax liability and penalty and interest

thereupon is increased at the time of passing of final orders. In

view of the aforementioned submissions, she contended that

there is no violation of principles of natural justice, impugned

order has been passed after issuing notice and providing

opportunity of hearing to the petitioner and, therefore, there is no

merit in the writ petition and it is liable to be dismissed.

5. I have heard learned counsel for the parties and also perused

the record of writ petition.

6. The facts of case are that the petitioner got registered its stage

carriage vehicles and deposited the tax based on self

declaration. Respondent- Taxation Authority received written

complaint which mentions about the short payment of tax by the

petitioner with specific calculation. Respondent issued

letter/notice on 12.03.2021 mentioning the amount of proposed

of tax, penalty and interest thereupon, fixing the date of

appearance of petitioner on 23.03.2021 to submit his reply and if

his reply is not filed within the said prescribed time, proceedings

under Section 16 of the Adhiniyam 1991 will be initiated.

Petitioner received the notice, submitted its written reply before

the Taxing Authority on 23.3.2021. From perusal of the reply

submitted by the petitioner, it is apparent that petitioner himself

pleaded that by the letter/notice it is informed about the

difference of tax, penalty and interest. In para-3 and 4 of its

reply, the petitioner narrated the number of sleepers + seats and

calculation made by him for payment of tax. The petitioner was

also aware of the complaint submitted against it by Kanker

Roadways as pleaded in para-6 of its reply. The proceedings

before the Taxation Authority is filed as Annexure P-10 would

show that on the date fixed in letter/notice, petitioner appeared

before the authority on 23.03.2021. Petitioner himself appeared

and submitted his reply. In view of the aforementioned facts of

the case and considering the preliminary objection raised by

learned counsel for the respondent-State, the prime

consideration of this Court is whether writ petition would be

maintainable when there is efficacious statutory alternative

remedy is available to the petitioner in the form of statutory

appeal under Section 20 of the of Adhiniyam 1991. Section 20 of

the Adhiniyam 1991 reads as below :-

"20. Appeal. - Any person,-

(a) aggrieved by an order made for levy of tax or for penalty imposed under Section 13, or

(b) aggrieved by the seizure of motor vehicle made under Section 16, or

(c) aggrieved by any order passed under this Act, may, within the prescribed time and in the prescribed manner appeal to the prescribed authority, who shall, after giving such person and the Taxation Authority an opportunity of being heard, dispose of the said appeal and the decision thereon shall be final:

Provided that no appeal shall be entertained unless the amount of tax and penalty levied, in respect of which the appeal has been preferred has been paid."

7. Learned counsel for the petitioner do not dispute submission of

learned counsel for the respondent that the order impugned is

appealable under Section 20 of the Adhiniyam 1991, but his

submission is that as the order is passed in violation of

principles of natural justice without issuing notice under Section

8 of the Adhiniyam 1991 in Form 'E-2', hence, the alternative

remedy will not operate as bar to the maintainability of writ

petition. As discussed in preceding paragraphs, the petitioner in

writ petition has filed Annexure P-2 i.e. letter dated 12.03.2021

and perusal of the contents of letter, which is a notice, specifies

the difference of amount of tax, penalty and interest thereupon

payable by it. Wordings used in the letter/notice is that the

authority proposed difference of tax paid, penalty and interest

thereon to be payable by the petitioner. It is not that the authority

has directed in the letter to deposit the tax amount, penalty and

interest, but in para-5 of the letter, it is mentioned that the

petitioner was directed to appear along with relevant documents

and to make his submission in his support, by fixing the date

and time of his appearance. Petitioner submitted written reply

vide Annexure P-9 in detail on each aspect. Petitioner was

aware as to what was the nature of complaint and what was the

purpose of notice served upon him. He himself appeared and

submitted reply before the Taxation Authority as appearing from

the proceedings drawn by the Taxation Authority available in the

record as Annexure P-10 i.e. note-sheet. In the aforementioned

facts of the case, submission of learned counsel for petitioner

that the petitioner was not served with notice, not provided

opportunity of hearing and, therefore, there is violation of

principles of natural justice, is not acceptable. The said

submission of learned counsel for the petitioner is repelled being

contrary to documents placed on record. The other submission

of learned counsel for the petitioner that the notice was not

issued in prescribed Form 'E-2'. For the purpose of these

proceedings, I am not intending to decide the grounds on merits

considering that the notice was issued to the petitioner vide

Annexure P-2 mentioning the proposed difference of tax liability

with penalty and interest and availability of alternate remedy of

filing appeal.

8. So far as the submission of learned counsel for petitioner that

the alternate remedy is not an absolute bar, is not in dispute.

Hon'ble Supreme Court in the case of The Assistant

Commissioner of State Tax (supra) held that where alternative

statutory remedy is available, writ petition can be entertained

only in exceptional circumstances, which are as below:-

"(A) a breach of fundamental rights;

(B) a violation of the principles of natural justice;

(C) an excess of jurisdiction; or

(D) a challenge to the vires of the statute or delegated legislation."

9. None of the above exceptional circumstance is existing in the

facts of the case. In view of the aforementioned facts and

circumstance of the case, there was no violation of principles of

natural justice, notice was served upon the petitioner

consequently he appeared and filed reply, and there is statutory

alternative remedy of filing appeal against the order impugned, I

am not inclined to entertain this writ petition.

10. The writ petition for the foregoing discussions are liable to be

and are hereby dismissed. However, dismissal of the writ

petition shall not preclude the petitioners from taking recourse to

appropriate remedy which are available under Section 20 of the

Adhiniyam 1991 to challenge the order impugned.

Sd/-/-/----/-/ (Parth Prateem Sahu) Judge

Praveen