Dismissed

M/S. Calpana Service Station, v. the Deputy Commercial Tax

Madras HC12 Mar 2014WP/23018/2010

Case brief

AI extract

What is this about?

The Court dismissed a writ petition seeking the quashing of an order rejecting an application for 'C' forms due to tax arrears. Relying on precedent, the Court held that an efficacious alternative remedy existed. However, granting time to file the revision, the writ was ultimately dismissed.

What did the court decide?

The writ petition is dismissed; the petitioner is given time up to 21 March 2014 to file a revision petition; connected miscellaneous petitions are closed.

M/S. Calpana Service Station, Vs the Deputy… — Writ and Judicial Review | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 12.03.2014

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CORAM:

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THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN

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W.P.No.23018 of 2010 & M.P.Nos.2 and 3 of 2010

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M/s. Calpana Service Station

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Rep. by its Proprietor K. Deivanayagam R.S.No.145/5, Villianur Road

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Kurumbapet Revenue Village

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Sulthanpet Puducherry-605 004.

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... Petitioner

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versus

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The Deputy Commercial Tax Officer-I Commercial Taxes Department Office of the Commissioner (CT)

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Puducherry.

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... Respondent

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Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records relating to the proceedings of the respondent dated 8 September 2010, quash the same and consequently direct the respondent to issue "C" Forms to the petitioner.

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This writ petition is directed against the order dated 8 September 2010 whereby and whereunder the Deputy Commercial Tax Officer, Puducherry rejected the request made by the petitioner for issuance of "C" form declaration, on the ground of arrears of tax and penalty.

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The facts:

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The petitioner, who is a dealer in petroleum products, is an assessee on the file of Commercial Tax Officer, Puducherry. The registration certificate issued to the petitioner was cancelled by the Commercial Tax Officer for non-payment of tax and penalty. The writ petition filed by the petitioner in W.P.No.24605 of 2009 challenging the order passed by the Commercial Tax Officer cancelling

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https://hcservices.ecourts.gov.in/hcservices/

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the registration was allowed by this Court. The Registration of the petitioner was subsequently renewed for a period of one year. The petitioner wanted "C" forms for the purpose of forwarding it to the oil Corporation. The request was rejected by the respondent solely on the ground of non payment of tax and penalty. The said order is under challenge in this writ petition.

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I have heard the learned counsel for the petitioner and the learned Senior Government Pleader appearing on behalf of the respondent.

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Analysis:

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There is no dispute that the assessing authority has passed orders of assessment for the year 2004-2005, 2005-2006 and 2006-2007. The assessing authority indicated the amount of tax and penalty payable by the petitioner for the three years period.

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The petitioner has been receiving petroleum products from the oil company subject to production of "C" form declaration. In case "C" forms were not given, the oil company would be liable to pay higher amount of tax. The request made by the petitioner for issuance of "C" form was rejected by the respondent only on the ground of substantial arrears of tax and penalty.

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The order impugned in this writ petition is a revisable one under Section 45 of Puducherry Value Added Tax Act. In fact the impugned order itself contain a statement made by the assessing officer that in case the petitioner is aggrieved, revision petition could be filed before the Commissioner, Commercial Tax Officer, Puducherry. The affidavit filed in support of the writ petition does not contain any indication that the appellate remedy is either ineffectual or non efficacious. When the statute provides for a particular remedy, the petitioner should approach the said forum at the first instance.

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The precedent:

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The Supreme Court in CIT v. Chhabil Dass Agarwal,(2014) 1 SCC 603, considered the question as to whether a writ petition would lie when a statutory forum is created by law for redressal of grievances. The Supreme Court observed that under normal circumstances, the party should approach only the appellate forum.

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The Supreme Court observed :

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"11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that nonentertainment of petitions under writ

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https://hcservices.ecourts.gov.in/hcservices/

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jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226.

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.......... 15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation."

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The other issue:

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The next question is whether this court would be justified in directing the petitioner to avail the statutory remedy, after entertaining the writ petitions.

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The issue referred to is no more res integra in view of the judgment of the Supreme Court in State of U.P. v. U.P. Rajya Khanij

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https://hcservices.ecourts.gov.in/hcservices/

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Vikas Nigam Sangharsh Samiti, (2008) 12 SCC 675.

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The Supreme Court observed thus :-

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"38. ..... True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ court. It has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that a writ petition is not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ petition albeit wrongly and granted the relief to the petitioner."

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(emphasis supplied)

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The impugned order was passed on 8 September 2010. The petitioner has filed this writ petition on 6 October 2010. Therefore it is clear that even before the expiry of the period prescribed for filing statutory revision, the petitioner has approached this Court and as such, opportunity should be given to file a revision petition.

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The petitioner is given time till 21 March 2014 to file a revision petition before the Commissioner, Commercial Tax Officer, Puducherry. In case any such revision is filed within the time indicated above, the Commissioner is directed to consider and dispose of the matter on merits and as per law without reference to the period of limitation.

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