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1998 Supreme(SC) 330
1998(9) Supreme 149
Supreme Court of India
(From Orissa High Court)
S.C. Agrawal, D.P. Wadhwa and A.P. Misra, JJ.
Pardeep Port Trust -Appellant
versus
Sales Tax Officer & Ors. -Respondents
Civil Appeal No. 1489 of 1998
(Arising out of SLP (C) No. 4482 of 1998)
With
C.A. Nos. 1490 to 1493 of 1998
(Arising out of SLPs (C) Nos. 4571, 4595, 4596 and 4625 of 1998)
Decided on 6-3-1998
Important Point
Where the Sales tax assessment order was challenged on the ground that the impost was not within legislative power of State raising question touching upon interpretation of Article 366 (29-A)(d) dismissal of writ petition on the ground that alternative remedy available under Sales Tax Act not availed was unjustified.
Headnote:Orissa General Sales Tax Act-Writ Petition against assessment order-Plea that tax levied in respect of matters which do not fall within legislative power of State-Dismissal on ground alternative remedy under Sales Tax Act available but not resorted to-Not justified-Questions involving interpretation of the words ‘transfer of the right to use any goods’ in sub-clause (d) of clause 29-A of Article 366 of the Constitution-High Court should have considered the question-Judgment of High Court set aside-Matter remanded to High Court for consideration on merit. (Para 2)
Special leave granted.
2. These appeals are directed against the judgment of the Orissa High Court dated 19.2.1998 in writ petitions filed by the appellant Port Trust against the orders of assessment passed by the Sales Tax Officer, Cuttack, in respect of Assessment Years 1990-91 to 1994-95. In the said writ petitions the case of the appellant was that the assessment for sales tax has been made in respect of matters which do not fall within the legislative power of the State to impose sales tax. The writ petitioners raise questions involving interpretation of the words “transfer of the right to use any goods” in sub-clause (d) of clause (29-A) of Article 366 of the Constitution. By the impugned judgment, the High Court has dismissed the writ petitions filed by the appellant on the view that, the alternative remedy of an appeal against order of assessment is available under the sales tax and since the said remedy is available the writ petitions could not be entertained. Having regard to the question that was involved in the writ petitions relating to interpretation of sub-clause (d) of clause 29A of Article 366 of the Constitution and the taxability of the transactions in respect of which sales tax has been assessed by the Sales Tax Officer, we are of the view that the High Court should have entertained the writ petitions and should have considered the said question instead of requiring the appellant to avail the remedy of appeal under the Sales Tax Act. The appeals are, therefore, allowed, the impugned judgment of the High Court is set aside and the writ petitions filed by the appellant are remitted to the High Court for consideration on merits. No order as to costs.
(C.R.) Appeal allowed
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Parallel Citations of other Journals :
Pardeep Port Trust v. Sales Tax Officer, 1998(9) Supreme 149
00024
