Uttarakhand High Court
WPMS/2788/2021 on 29 December, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
SHRI JUSTICE S.K. MISHRA, A.C.J.
AND
SRI JUSTICE N.S. DHANIK, J.
WRIT PETITION (M/S) No. 2788 OF 2021
29TH DECEMBER, 2021
Between:
Maa Sheetla Udyog Private Limited
(through its Managing Director Shri Navneet Agarwal)
Industrial Area, Mallital, Bhimtal,
District Nainital. ....Petitioner.
and
1. The State of Uttarakhand,
(through its Principal Secretary Finance),
Government of Uttarakhand,
Secretariat, Dehradun.
2. The Commissioner of State Tax, Ring Road,
Dehradun.
3. The Assistant Commissioner, State Tax, Nainital.
...Respondents
Counsel for the petitioner: Mr. P.R. Mullick,
learned counsel.
Counsel for the respondents: Mr. Mohit Maulekhi,
learned Brief Holder for
the State of
Uttarakhand.
Upon hearing the learned counsel, the Court made
the following:
JUDGMENT : (per Sri Justice S.K. Mishra, A.C.J.)
This writ petition has been filed by the petitioner
praying for issuance of a writ in the nature of certiorari
quashing the assessment order passed under Section
25(7) of the Uttarakhand Value Added Tax Act, 2005
(hereinafter referred to as 'the Act of 2005' for brevity)
for the assessment years 2018-19 & 2019-20 dated
28.01.2021 (Annexure-3 colly), and the assessment
order passed under Section 29(1) for the assessment
yars 2018-19 & 2019-20 (Annexure-4 colly), and to
further issue a writ of mandamus directing the
respondents to commence de novo fresh assessment
proceedings, after providing the petitioner, a copy of
the SIB report and after issuing a specific show cause
notice to the petitioner for both the assessment years
2018-19 & 2019-20.
2. Admittedly, an alternative efficacious remedy is
available under Section 51 of the Act of 2005 to the
petitioner. So, this Court is of the opinion that the
petitioner should have availed the alternative remedy,
rather than approaching this Court under Article 226 of
the Constitution of India.
3. Mr. P.R. Mullick, the learned counsel for the
petitioner, has very emphatically relied upon the
following six judgments:
(I) Raghuvar Mondal Hari Har Mondal vs. State
of Bihar, 1957 AIR 810
(II) Malabar Industrial Company Ltd. vs. CIT
(2000) 109 Taxman 66 (SC)
(III) Badrinath vs. Government of Tamil Nadu &
Ors., (2000) 8 SCC 395
(IV) Commissioner of Income Tax vs. Eicher
Ltd., (2007) 163 Taxman 259 (Delhi)
(V) Vehalana Steels and Alloys Pvt. Ltd. vs.
State of U.P., 2008 (ADJ) 628
(VI) M/s Neelkanth Sweets vs. Commissioner
of 2013)
And, thereafter, contended that a writ petition is
even maintainable against an order of assessment
passed by the Assessing Authority.
4. This Court asked Mr. P.R. Mullick, the learned
counsel appearing for the petitioner, thrice, to take
the Court to that portion of the aforesaid judgments
where any ratio about the maintainability of a writ
petition against an order of assessment passed by the
Assessing Authority have been laid down. But he
could not show the same. Further, he failed to point
out from the aforesaid judgments cited by him in this
case that in the case of availability of an alternative
efficacious remedy, a writ application should be
entertained without making out any special case, like
violation of principles of natural justice, etc.
5. Though it is submitted by Mr. P.R. Mullick, the
learned counsel for the petitioner, that there has been
violation of the principles of natural justice in this
case in the sense that a copy of the SIB report was
not given to the assesse, we are of the view that this
aspect can be looked into by the Appellate Authority
under Section 51 of the Act of 2005, but Mr. P.R.
Mullick, the learned counsel for the petitioner, has a
grievance that in case of an appeal under Section 51
of the Act of 2005, the petitioner will have to deposit
a statutory amount, which the petitioner is not in a
position to bear. Only for that grievance, this writ
petition cannot be entertained by this Court. The writ
petition is, therefore, dismissed being devoid of any
merit.
6. No order as to costs.
____________
(S.K. MISHRA),
A.C.J.
____________
N.S. DHANIK, J.
Dt: 29.12.2021
Rathour
