IMPORTANT POINT
When there is an alternate remedy available, judicial prudence demands that court refrains from exercising its jurisdiction under constitutional provisions.

JUDGMENT :

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 30.04.2021 passed by the High Court of Judicature at Bombay in Writ Petition (Stamp) No. 92630 of 2020, by which the High Court has, in exercise of powers under Article 226 of the Constitution of India, set aside the assessment order passed by the assessing authority and also the belated notice of demand, the State of Maharashtra and others have preferred the present appeal.

2. That the respondent – original writ petitioner was subjected to proceedings under the Maharashtra Value Added Tax, 2002 (hereinafter referred to as the ‘MVAT Act’) and Central Sales Tax Act, 1956 (hereinafter referred to as the ‘CST Act’). The Assessing Officer issued notice of assessment dated 01.02.2018 calling upon the assessee to produce relevant documents and also to show cause as to why it should not be assessed under the relevant provisions of Section 23 of the MVAT Act.

2.1 According to the writ petitioner, the writ petitioner submitted the required documents and also showed cause vide letter dated 03.05.2018. That a personal hearing was fixed on 16.03.2020. However, on 16.03.2020 the Assessing Officer was not available and therefore no hearing took place. According to the writ petitioner, multiple telephone calls were made to the Assessing Officer on 17.03.2020, 18.03.2020 and 19.03.2020 for personal hearing, but no such hearing materialised. According to the writ petitioner, vide letter dated 20.03.2020 it was submitted before the Assessing Officer that for the financial year under consideration the relevant documents had already been submitted and personal hearing was requested. The Assessing Officer passed an order on 20.03.2020 determining the tax liability along with interest and penalty under the MVAT Act and CST Act.

2.2 That without preferring any appeal before the first appellate authority, the respondent – assessee – original writ petitioner filed a writ petition before the High Court challenging the assessment order passed under the provisions of the MVAT Act and CST Act alleging inter alia that no order was passed on 20.03.2020 and it was passed in the month of July, 2020, which was beyond the period of limitation. The High Court has entertained the said writ petition against the assessment order under Article 226 of the Constitution of India and has passed the impugned judgment and order quashing and setting aside the assessment order and the demand notice.

2.3 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the State of Maharashtra and others have preferred the present appeal.

3. Number of submissions have been made by the counsel appearing for the respective parties on merits and on the assessment order passed by the Assessing Officer. However, for the reasons given here-in-below, we are of the opinion that against the assessment order, the High Court ought not to have entertained the writ petition and ought to have relegated the assessee to prefer a first appeal before the first appellate authority. Therefore, we are not elaborating the submissions on merits.

4. Shri Sachin Patil, learned counsel appearing on behalf of the appellants has vehemently submitted that against the assessment order passed by the Assessing Officer under the provisions of the MVAT Act and CST Act, the High Court ought not to have entertained the writ petition under Article 226 of the Constitution of India.

4.1 It is next submitted by the learned counsel appearing on behalf of the appellants that the assessee had a statutory alternative remedy available by way of appeal before the first appellate authority and the said remedy ought to have been pursued, more so because, there were very serious disputed facts as to whether the assessment order was passed on 20.03.2020 or on 14.07.2020 (as alleged by the assessee).

4.2 Making the above submissions and relying upon the decisions of this Court in the case of Titaghu