Mansoor Ahmad Mir, C.J@mdashThe petitioners, by the medium of these writ petitions, have questioned the show-cause notice(s) dated 13.5.2015, Annexure P1, issued in terms of Section 46 of the Himachal Pradesh Value Added Tax Act, 2005, for short "the Act", by respondent No. 2 in all the writ petitions, on the grounds taken in the writ petitions.
2. The writ petitioners have questioned the show-cause notice(s) dated 13.5.2015, the foundation of which is similar and the petitioners have also taken the similar grounds to question these notices in all the writ petitions, thus we deem it proper to determine all these writ petitions by this common judgment.
3. Respondent No. 2 has invoked the powers, authority and the jurisdiction as per the mandate of Section 46 (1) of the Act, and has asked the petitioners to show-cause. The contents of show-cause notices in all the writ petitions are same, except the assessment years. It is apt to reproduce one of the show-cause notices herein:
"BEFORE DR. SUNIL KUMAR, DY. EXCISE
AND TAXATION COMMISSIONER, FLYING
SQUAD, SOUTH ZONE, PARWANOO
FORM-XXXX
{See rule 80(1)}
Notice under section 46 of the Himachal Pradesh
Value Added Tax Act, 2005
To
M/s. Micromax Informatics Ltd.,
Plot No. 234-HPSIDC,
Industrial Area Baddi,
TIN-02020500697.
Whereas:-
(a) You are a dealer registered under the Himachal Pradesh Value Added Tax Act, 2005;
(b) The assessment for the year 2010-11 which has been disposed of by the AETC-cum-Assessing Authority, Solan, district Solan vide order dated 19.12.2014 therein,
(c) In order to satisfy myself as to legality and propriety of the aforesaid, the aforesaid order was called for and it has been found that you have underpaid VAT on mobile chargers.
2. In view of the aforesaid, the said order appears not to be legal and proper and as such the same requires to be revised under sub-section (1) of section 46 of the Act.
3. Now, therefore, in exercise of powers conferred upon me under section 46(1) of the Himachal Pradesh Value Added Tax Act, 2005, it is proposed to take action in the matter and to pass appropriate consequential orders in relation to the said order. Before, however, the requisite order under section 46(1) is passed, you are hereby afforded the opportunity of being heard and directed to attend in person or by a duly authorized agent in my office located at the HIG-1-A, Sector-1A, Parwanoo on 21.05.2015 at 11.30 A.M and there to prefer any objection, which you may wish to prefer in this behalf as to why the appropriate order under section 46 of the aforesaid Act should not be passed.
4. In the event of your failure to comply with this notice, I shall proceed to pass the order as aforesaid without further reference to you.
(Dr. Sunil Kumar)
Dy. Excise and Taxation Commissioner,
Flying Squad, South Zone, Parwanoo.
Copy to the AETC-cum-Assessing Authority, Solan with direction to depute an official who is familiar with the case to appear before the undersigned at the above given time and date alongwith entire record of the case.
(Dr. Sunil Kumar)
Dy. Excise and Taxation Commissioner,
Flying Squad, South Zone, Parwanoo."
4. Respondent No. 2 has stated in the notice(s) that the order dated 19.12.2014, for the assessment year 2010-11 in CWP No. 3012/2015, dated 8.1.2015 for the assessment year 2011-12 in CWP No. 3013/2015 and the order dated 8.1.2015 in CWP No. 3014/2015, for the assessment year 2012-13, appear not to be legal and proper and as such the same require to be revised under sub-section (1) of section 46 of the Act. In this backdrop, the petitioners have been asked to show-cause why the proposed action be not drawn.
5. It is moot question-whether the show-cause notices can be questioned by the medium of these writ petitions and whether the writ petitions are maintainable?
6. The petitioners have questioned the said notice(s) mainly on the following grounds:
"(i) That respondent No. 2 has recorded the final findings in the impugned notices, thus nothing remains to be determined,
(ii) That it is violative of principles of natural justice,
(iii) That the petitioners have no efficacious, alternative remedy available,
(iv) That respondent No. 2 has acted illegally and arbitrarily and is not having power and jurisdiction,
(v) That the ratio laid down by the apex Court in case titled
7. The petitioners, in the respective writ petitions, have given details in support of the said grounds and in support of their submissions, the learned counsel for the petitioners have also relied upon the decisions in case titled
8. Respondent No. 2 has invoked the jurisdiction under Section 46 of the of the Act. It is apt to reproduce Section 46(1) of the Act herein:
"46. Revision.- (1) The Commissioner may, of his own motion, call for the record of any proceedings which are pending before, or have been disposed of by, any Authority subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such proceedings or order made therein and, on finding the proceedings or the orders prejudicial to the interest of revenue, may pass such order in relation thereto as he may think fit:
Provided that the powers under this sub-section shall be exercisable only within a period of five years from the date on which such order was communicated".
9. Respondent No. 2 has not made any decision in terms of Section 46(3) of the Act, only the petitioners have been asked to show-cause. In case they satisfy respondent No. 2, show-cause notices can be dropped and in case the order goes against the petitioners, they have remedy available under Section 48 of the Act. It is profitable to reproduce Section 48 of the Act herein.
"48. Revision to High Court. - (1) Any person aggrieved by an order made by the tribunal under sub-section (2) of section 45 or under sub-section (3) of section 46, may, within 90 days of the communication of such order, apply to the High Court of Himachal Pradesh for revision of such order if it involves any question of law arising out of erroneous decision of law or failure to decide a question of law.
(2) The application for revision under sub-section (1) shall precisely state the question of law involved in the order, and it shall be competent for the High Court to formulate the question of law.
(3) Where an application under this section is pending, the High Court may, or on application, in this behalf, stay recovery of any disputed amount of tax, penalty or interest payable or refund of any amount due under the order sought to be revised:
Provided that no order for stay of recovery of such disputed amount shall remain in force for more than 30 days unless the applicant furnishes adequate security to the satisfaction of the Assessing Authority concerned."
10. Thus, the petitioners have efficacious remedy available, as per the mandate of Section 48 of the Act.
11. It is beaten law of the land that when the efficacious remedy is available, the writ petition is not maintainable.
12. This Court in batch of writ petitions, the lead case of which is CWP No. 4779 of 2014 titled M/s. Indian Technomac Company Ltd. versus State of H.P. and others decided on 4.8.2014, held that the petitions are not maintainable. It is apt to reproduce paras 11 to 14, 16 and 18 of the said judgment herein:
"11. Now, the question which arises for determination is - when an Act provides mechanism to have remedy(ies), can a writ lie in the given circumstances? The answer is in the negative for the following reasons. It is well settled principle of law that High Courts have imposed rule of self limitation in entertaining the writ petition in terms of writ jurisdiction when alternative remedy is available. High Court must not interfere if there is adequate efficacious alternative remedy available and the practice of approaching the High Court, without availing the remedy(ies) provided, must be deprecated, unless express case is made out.
12. The Apex Court in
"8. Before we discuss the correctness of the impugned order, we intend to remind ourselves the observations made by this Court in
"23. ....... when a revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner and all the -other forums and modes of seeking remedy are excluded."
9. A Bench of three learned Judges of as Court, in
"11...... The Act provides for a complete-machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where right or liability is created by a statute which gives a special remedy for 1 enforcing it, the remedy provided by that statute must be availed...."
10. In other words, existence of an adequate alternate remedy is a factor to be considered by the writ court before exercising its writ jurisdiction (See
11. In
"15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of the Fundamental Rights or where there has been a violation of the principle of natural justices or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged......"
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14. Having said so, we have gone through the orders passed by the Tribunal. The only determination made by the Tribunal is with regard to the assessable value of the commodity in question by excluding the freight/ transportation charges and the insurance charges from the assessable value of the commodity in question. Since what was done by the Tribunal is the determination of the assessable value of the commodity in question for the purpose of the levy of duty under the Act, in our opinion, the assessee ought to have carried the matter by way of an appeal before this Court under Section 35L of the Central Excise Act, 1944.
15. In our opinion, the assessee ought not to have filed a writ petition before the High Court questioning the correctness or otherwise of the orders passed by the Tribunal. The Excise Law is a complete code in order to seek redress in excise matters and hence may not be appropriate for the writ court to entertain a petition under Article 226 of the Constitution. Therefore, the learned Single Judge was justified in observing that since the assessee has a remedy in the form of a right of appeal under the statute, that remedy must be exhausted first. The order passed by the learned Single Judge, in our opinion, ought not to have been interfered with by the Division Bench of the High Court in the appeal filed by the respondent/assessee."
13. The Apex Court in
"24. Section 19 provides for remedy of appeal against an order made by the State Commission in exercise of its powers under sub-clause (i) of Clause (a) of Section 17. If Sections 11, 17 and 21 of the 1986 Act which relate to the jurisdiction of the District Forum, the State Commission and the National Commission, there does not appear any plausible reason to interpret the same in a manner which would frustrate the object of legislation.
25. What has surprised us is that the High Court has not even referred to Sections 17 and 19 of the 1986 Act and the law laid down in various judgments of this Court and yet it has declared that the directions given by the State Commission are without jurisdiction and that too by overlooking the availability of statutory remedy of appeal to the respondents."
14. The Apex Court in a recent decision in
"12. The Constitution Benches of this Court in
13. In
"12. In
''7. ... The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.''
13. In
''11. ... It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford, 141 ER 486 in the following passage: (ER p. 495)
"... There are three classes of cases in which a liability may be established founded upon a statute. ... But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. ... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to."
The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd., 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd., 1935 AC 532 (PC) and
14. In
''77. ... So far as the jurisdiction of the High Court under Article 226-or for that matter, the jurisdiction of this Court under Article 32-is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment.''" (See:
14. In
"8. Before we discuss the correctness of the impugned order, we intend to remind ourselves the observations made by this Court in
''23. ... when a revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all the other forums and modes of seeking [remedy] are excluded.''"
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15. Thus, while it can be said that this Court has recognized 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
16. In the instant case, the Act provides complete machinery for the assessment/re-assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In
17. In the instant case, neither has the writ petitioner assessee described the available alternate remedy under the Act as ineffectual and non-efficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of instant case. In light of the same, we are of the considered opinion that the Writ Court ought not to have entertained the Writ Petition filed by the assessee, wherein he has only questioned the correctness or otherwise of the notices issued under Section 148 of the Act, the re-assessment orders passed and the consequential demand notices issued thereon."
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16. The sum and substance of the above discussion is that the writ petitioners-Company have remedies of appeal(s), before approaching the High Court by way of the writ petitions, for the redressal of their grievances. The petitioners ought to have exhausted the remedy of appeal before the Deputy Excise and Taxation Commissioner or Additional Excise and Taxation Commissioner or the Excise Commissioner, as the case may be, and if the petitioners were not successful in those appeal proceedings, another remedy available to them was to challenge the said order(s) by the medium of appeal before the Tribunal, and again, if they were unsuccessful, they could have availed the remedy of revision before the High Court in terms of Section 48 of the HP VAT Act, 2005. Keeping in view the above discussion, read with the fact that the dispute raised in these writ petitions relates to revenue/tax matters, it can safely be concluded that the petitioners have sufficient efficacious remedy(ies) available.
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18. Having said so, we are of the considered view that the writ petitioners have alternative efficacious remedy available and these writ petitions are not maintainable. Accordingly, the same merit to be dismissed in limine. However, it is made clear that the observations made herein shall not cause any prejudice to the petitioners in case they intend to file appeal(s) before the prescribed Authority and the period spent by the petitioners for prosecuting these writ petitions shall be excluded by the Appellate Authority while computing the period of limitation."
13. The said judgment was questioned before the apex Court and the apex Court has dismissed the SLP vide order dated 22.8.2014 in SLP (C) Nos. 22626-22641 of 2014.
14. The petitioners have also stated that the judgment delivered by the apex Court in case titled
15. The learned counsel for the petitioners has tried to distinguish the said judgment in the given facts and circumstances of the case. It is for the petitioners to take all these grounds before respondent No. 2 while filing reply to show-cause notices.
16. The petitioners have been asked to show-cause. Then how it is violative of the principles of natural justice and how it can be said that the writ petitioners have been condemned unheard. They have to carve out a case by the medium of reply and arguments before respondent No. 2. In fact, they want to give a slip to the law and bye-pass the remedy available to them, which is not permissible.
17. This Court in case titled M/s. Samsung India Electronics Pvt. Ltd. v. State of H.P. and others (CWP No. 1596 of 2015), while dealing with the similar, as is raised in these writ petitions, held that the writ petition is not maintainable. It is apt to reproduce paras 1 and 17 of the said judgment herein:
"1. By medium of this petition, the petitioner has called in question the show cause notice issued by respondent No. 4 on 22.12.2014 under section 16(8) of the Himachal Pradesh Value Added Tax Act, 2005 (for short, H.P. VAT Act, 2005). The petitioner has been asked to personally appear alongwith the relevant documents for the years 2010-2012 to 2014-2015 (up to 30.11.2014) for the reason that petitioner was paying VAT at the rate of 5% on the sale of cellphone chargers and other accessories instead of 13.75%. The petitioner is further aggrieved by the show cause notice dated 30.12.2014 issued under section 46 of the Act by respondent No. 3, which seeks to revise the assessment order dated 16.11.2012 for the year 2011-2012 on the ground that the assessment order is not legal and proper as the same needs to be revised on the grounds that tax on sale of battery charger was levied at 5% whereas the same should have been levied at 13.75% in view of the judgement of Hon''ble Supreme Court in
2 to 16.... ........
18. Having said so, we are of the considered view that the writ petitioners have alternative efficacious remedy available and these writ petitions are not maintainable. Accordingly, the same merit to be dismissed in limine. However, it is made clear that the observations made herein shall not cause any prejudice to the petitioners in case they intend to file appeal(s) before the prescribed Authority and the period spent by the petitioners for prosecuting these writ petitions shall be excluded by the Appellate Authority while computing the period of limitation."
18. The apex Court in case titled
"34. The aforesaid decisions rendered by this Court can be summarised as follows:
The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including Armed Forces Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India.(Refer: L. Chandra and S.N. Mukherjee).
(ii) The jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of the Acts and would exercise their jurisdiction consistent with the provisions of the Act.(Refer: Mafatlal Industries Ltd.).
(iii) When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Refer: Nivedita Sharma).
(iv) 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. (Refer: Nivedita Sharma).
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37. Likelihood of anomalous situation
If the High Court entertains a petition under Article 226 of the Constitution of India against order passed by Armed Forces Tribunal under Section 14 or Section 15 of the Act bypassing the machinery of statute i.e. Sections 30 and 31 of the Act, there is likelihood of anomalous situation for the aggrieved person in praying for relief from this Court.
Section 30 provides for an appeal to this Court subject to leave granted under Section 31 of the Act. By clause (2) of Article 136 of the Constitution of India, the appellate jurisdiction of this Court under Article 136 has been excluded in relation to any judgment, determination, sentence or order passed or made by any court or Tribunal constituted by or under any law relating to the Armed Forces. If any person aggrieved by the order of the Tribunal, moves before the High Court under Article 226 and the High Court entertains the petition and passes a judgment or order, the person who may be aggrieved against both the orders passed by the Armed Forces Tribunal and the High Court, cannot challenge both the orders in one joint appeal. The aggrieved person may file leave to appeal under Article 136 of the Constitution against the judgment passed by the High Court but in view of the bar of jurisdiction by clause (2) of Article 136, this Court cannot entertain appeal against the order of the Armed Forces Tribunal. Once, the High Court entertains a petition under Article 226 of the Constitution against the order of Armed Forces Tribunal and decides the matter, the person who thus approached the High Court, will also be precluded from filing an appeal under Section 30 with leave to appeal under Section 31 of the Act against the order of the Armed Forces Tribunal as he cannot challenge the order passed by the High Court under Article 226 of the Constitution under Section 30 read with Section 31 of the Act. Thereby, there is a chance of anomalous situation. Therefore, it is always desirable for the High Court to act in terms of the law laid down by this Court as referred to above, which is binding on the High Court under Article 141 of the Constitution of India, allowing the aggrieved person to avail the remedy under Section 30 read with Section 31 Armed Forces Act.
38. The High Court (Delhi High Court) while entertaining the writ petition under Article 226 of the Constitution bypassed the machinery created under Sections 30 and 31 of Act. However, we find that Andhra Pradesh High Court and the Allahabad High Court had not entertained the petitions under Article 226 and directed the writ petitioners to seek resort under Sections 30 and 31 of the Act. Further, the law laid down by this Court, as referred to above, being binding on the High Court, we are of the view that Delhi High Court was not justified in entertaining the petition under Article 226 of the Constitution of India."
19. The show-cause notice(s) is not a final order. It is for the petitioners to show-cause and take all the grounds, which are available as weapons in their armory.
20. The learned counsel for the petitioners argued that the requisite notification, in terms of sub-section 2 of Section 46 has not been issued. Thus, respondent No. 2, is not having power and jurisdiction to issue show-cause notice(s). The argument though attractive, is misconceived for the reasons that the petitioners can take these grounds before respondent No. 2, while replying the show-cause notice(s).
21. This Court has also held in CWP No. 1159 of 2014-F titled Sandeep Sethi versus State of H.P. and others, that the show-cause notice cannot be questioned by the medium of the writ petition. The apex Court has also laid down the same principles of law in
22. While going through the writ petitions on hand, it appears that the petitioners have tried to give a slip to the law. The same issue has already been determined by this Court in M/s. Technomac''s and M/s. Samsung''s cases supra.
23. Having glance of the above discussion, the writ petitions deserve to be dismissed in limine and the same are dismissed as such. However, the dismissal of these writ petitions shall not cause any prejudice to the writ petitioners to appear and file reply to the show-cause notice(s) before respondent No. 2 and take all the grounds, which have been taken in the writ petitions on hand.
24. All the writ petitions stand dismissed, alongwith pending applications, if any.
