Indian Farmers Fertilizer ... vs Sales Tax Officer
2021 Latest Caselaw 262 j&K

                                      h475




                                                                S.No.112

            HIGH COURT OF JAMMU AND KASHMIR
                       AT JAMMU

                                               WP(C) No.275/2021




Indian Farmers Fertilizer Cooperative Ltd.                ...Appellant(s)

                           Through:- Ms. Kavita Jha, Advocate
                                     (through virtual mode)
      V/s
Sales Tax Officer                                         ...Respondent(s)
                          Through:- Mr. K.D.S.Kotwal, Dy. AG

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
        HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                  JUDGMENT

Sanjeev Kumar-J

1. The petitioner is aggrieved of order dated 06.01.2020 passed by the

respondent, whereby the application filed by the petitioner for refund of

Rs.23,19,436.88 on account of VAT paid on goods sold during 4 th quarter

of 2011-12 and allegedly returned during April, 2012 has been rejected.

The refund claim has been rejected by the respondent on the following

grounds:-

"i. The delay of six years on part of the assessee to apply for refund.

ii. Filing of audit report after finalization of the account without claiming deductions.

iii. Inaction on part of the assessee to claim deductions of sales return from the taxable turnover despite knowing 2 WP(C) NO.275/2021

that goods are placed under exempted category from 01.04.2012.

iv. The excess tax was not determined in the return and self-assessment was accepted u/s 37 of the J&K VAT Act, 2005."

2. The impugned order has been assailed by the petitioner, inter alia, on

the ground that the same is in violation of the principles of natural justice.

3. Mr. K.D.S.Kotwal, learned Dy. AG, on his own appeared in the

matter and assails the maintainability of the writ petition on the ground of

availability of efficacious statutory remedy under the Jammu & Kashmir

Value Added Tax Act, 2005 [ "the Act"]. It is contended that in terms of

Section 72 of the Act, a dealer or any other assessee objecting to any order

passed by the assessing authority or any other officer under Section 66 or

Section 67 other than the Additional Commissioner or Deputy

Commissioner Commercial Taxes is entitled to file appeal to the appellate

authority within thirty days from the date on which he is served with the

order. However, if the order impugned is made by the Additional

Commissioner or Deputy Commissioner, appeal would lie to the

Commissioner.

4. Having heard learned counsel for the parties and perused the

record, we are of the view that in the face of availability of statutory

remedy, which is equally efficacious, there is no warrant for entertaining

this petition and to exercise extraordinary writ jurisdiction.

5. The plea of the petitioner is that since the order impugned has

been passed in violation of the principles of natural justice and, therefore, 3 WP(C) NO.275/2021

availability of alternative remedy may not be a bar for the exercise of writ

jurisdiction to review the impugned order.

6. From a perusal of the record it is seen that the dealer had filed return

for the 4th quarter 2011-12 on 27.04.20212 showing the taxable sale at

Rs.19,56,83,168.84 and deposited tax thereon @ 5% on 24.04.2012. The

dealer, however, did not show any deduction on account of sales returned

in the 4th quarter 2011-12 return despite the fact that the goods sold had

been allegedly received back before filing of the return. It is on merits as

well as on account of delay and other allied reasons, the claim for refund of

the VAT paid by the petitioner has been rejected. The case for refund has

been process on the application of the petitioner and all its pleas raised in

the application have been dealt with in the impugned order.

7. The impugned order, as is apparent from its bare reading, is

speaking one and spells out reasons for the decision. The reasons may be

good or bad but the same can only be made subject matter of challenge in

an appeal before the appellate authority under Section 72 of the Act. This

Court not being a Court of appeal may not be in a position to appreciate the

factual aspect of the matter. The appellate authority appointed by the

Government for hearing appeals under Section 72 of the Act would be in a

better position to appreciate both questions of fact and law. It is well settled

that once statutory mechanism is provided for resolution of dispute, the

party aggrieved must availed of the statutory remedy provided under the

Statute and should not rush to the High Court invoking its extra ordinary

writ jurisdiction.

4 WP(C) NO.275/2021

8. In the case of A.P.Foods v. S. Samuel and others, (2006) 5

SCC 469, hon'ble the Supreme Court while confronting with the similar

situation in paragraph Nos. 6 and 7 held thus:-

"6. In a catena of decisions it has been held that writ petition under Article 226 of the Constitution of India, 1950 (in short 'the Constitution') should not be entertained when the statutory remedy is available under the Act, unless exceptional circumstances are made out.

7. In U.P. State Bridge Corporation Ltd. and Ors. v. U.P. Rajya Setu Nigam S. Karamchari Sangh (2004 (4) SCC 268), it was held that when the dispute relates to enforcement of a right or obligation under the statute and specific remedy is, therefore, provided under the statute, the High Court should not deviate from the general view and interfere under Article 226 except when a very strong case is made out for making a departure. The person who insists upon such remedy can avail of the process as provided under the statute. To same effect are the decisions in Premier Automobiles Ltd. v. Kamlekar Shantarum Wadke (1976 (1) SCC 496), Rajasthan SRTC v. Krishna Kant (1995 (5) SCC 75), Chandrakant Tukaram Nikam v. Municipal Corporation of Ahmedabad and Anr. (2002) (2) SCC 542) and Scooters India and Ors. v. Vijai V. Eldred (1998 (6) SCC 549)."

9. No exceptional case is made out to exercise the extraordinary

writ jurisdiction.

10. For the foregoing reasons, we are not inclined to entertain this

petition and, therefore, relegate the petitioner to remedy of appeal provided

under the Act. Should the petitioner approach the appellate authority by 5 WP(C) NO.275/2021

way of appeal against the impugned order, the appellate authority shall

consider the condonation of delay, if any, liberally having regard to the

post Covid-19 situation.

It is so ordered.

                                              (Sanjay Dhar)                       (Sanjeev Kumar)
                                                   Judge                                  Judge

               Jammu
               09.03.2021
               Vinod.
                                                    Whether the order is speaking :Yes/No
                                                    Whether the order is reportable: Yes/No




VINOD KUMAR
2021.03.10 10:55
I attest to the accuracy and
integrity of this document