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2019 Supreme(Raj) 579
IN THE HIGH COURT OF RAJASTHAN BENCH AT JAIPUR
MOHAMMAD RAFIQ, NARENDRA SINGH DHADDHA, JJ.
HCL Infosystems Limited and Ors. - Appellants
Versus
State of Rajasthan and Ors. - Respondents
D.B. Special Appeal Writ Nos. 491, 492, 493, 494, 511, 512, 513, 514, 515, 516, 517, 518, 519, 520, 521, 522, 523, 524, 525 and 526 of 2017
Decided On : 17-09-2019
For the Appellant :K.K. Sharma, Sr. Advocate assisted by Siddharth Ranka, Nikhil Gupta, Prakul Khurana, Rahul Lakhwani, Bhavya Verma, Sameer Jain, Yogendra Adlak, Daksh Pareek, Arjun Singh and Karan Sachdev.
For the Respondents: R.B. Mathur and Nikhil Simlote.
The availability of an efficacious alternate remedy of appeal before the Deputy Commissioner (Appeals) and the Rajasthan Tax Board barred the maintainability of the writ petitions challenging reassessment orders passed under the Rajasthan Value Added Tax Act, 2003.
Headnote:
VALUE ADDED TAX - REASSESSMENT - JURISDICTION - ALTERNATE REMEDY - WRIT PETITION - MAINTAINABILITY - The Rajasthan High Court held that writ petitions challenging reassessment orders passed under the Rajasthan Value Added Tax Act, 2003, were not maintainable due to the availability of an efficacious alternate remedy of appeal before the Deputy Commissioner (Appeals) and the Rajasthan Tax Board.
Fact of the Case:
The appellants, who are registered dealers under the Rajasthan Value Added Tax Act, 2003, challenged the reassessment orders passed by the Assessing Officer on the basis of the Supreme Court's judgment in Nokia India Pvt. Ltd. v. State of Punjab, which held that mobile phone chargers are accessories and are liable to be taxed separately. The appellants argued that the reassessment orders were without jurisdiction and that writ petitions could be directly maintained before the High Court.
Finding of the Court:
The High Court held that the availability of an alternate remedy of appeal before the Deputy Commissioner (Appeals) and the Rajasthan Tax Board was an efficacious and speedy remedy, especially considering that the High Court had the power to grant appropriate interim orders of stay in sales tax revisions. The Court noted that in similar cases, appeals had been filed before the appellate authorities and the Tax Board, and in some cases, penalty had been waived. The Court also noted that the Tax Board had made a reference to its Full Bench on the questions of law involved in these cases.
Issues: 1. Whether writ petitions challenging reassessment orders passed under the Rajasthan Value Added Tax Act, 2003, were maintainable in light of the availability of an efficacious alternate remedy of appeal. 2. Whether the reassessment orders were passed without jurisdiction.
Ratio Decidendi: 1. The High Court held that the availability of an efficacious alternate remedy of appeal before the Deputy Commissioner (Appeals) and the Rajasthan Tax Board barred the maintainability of the writ petitions. The Court noted that the alternate remedy was equally efficacious and speedy, especially considering the High Court's power to grant interim orders of stay in sales tax revisions. 2. The Court declined to examine the arguments on merits made by both parties, as it did not want to prejudice their case before the appellate authority/Tax Board.
Final Decision: The appeals were dismissed. The High Court directed that if appeals were filed before the appellate authority concerned within 60 days from the date of the judgment, the same shall be entertained, heard, and decided on merits.
JUDGMENT :
Mohammad Rafiq, J.
REPORTABLE
1. All these appeals have been preferred against the judgment of the learned Single Judge dated 10.3.2017, whereby the writ petitions filed by the appellants were dismissed. The appellants in the writ petitions challenged the notices issued to them under Section 25, 26, 55 and 61 of the Rajasthan Value Added Tax, 2003 (for short-'the Act of 2003') as also the reassessment orders passed, on the basis of such notice in some of the cases, relying on the judgment of the Supreme Court in State of Punjab vs. Nokia India Pvt. Ltd. (2014) 16 SCC 410. Some of the petitioners filed reply to the show cause notice and agitated those very arguments, which have been raised before this Court and in some of the cases, the assessment orders have been passed, therefore, after considering such issues, in the facts and circumstances of the case, the learned Single Judge taking note of the submissions made by learned counsel for the revenue that the entire due amount of tax and interest has been paid by the appellants, thus the condition of the prior payment of due amount to maintain the appeal stands satisfied and that despite there being no interim order, the demand for recovery of penalty has not been pressed against the petitioners during the pendency of the writ petitions, therefore, it was held that the appellants would have efficacious alternate remedy of successive appeals provided in the Act of 2003 itself. Considering however that the period for filing the appeal has expired, the learned Single Judge gave liberty to the appellants to file appeal within 60 days from the date the judgment is pronounced. Learned Single Judge in taking that view mainly relied on the judgment of Himachal Pradesh High Court in Samsung India Electronics Pvt. Ltd. vs. State of Himachal Pradesh & Ors. (2017) 102 VST 78 (HP), in which case also the reassessment orders passed on the basis of judgment of the Supreme Court in Nokia India Pvt. Ltd., supra was directly challenged before the High Court in writ petitions, which were dismissed as not maintainable on the ground of availability of alternate remedy.
2. We have heard Shri K.K. Sharma, learned senior counsel, Shri Siddharth Ranka, Shri Nikhil Gupta & Shri Sameer Jain learned counsel for the appellants and Shri R.B. Mathur, learned counsel for the revenue at length. They have also supplemented their arguments by written submissions. The arguments were advanced both on the merits and also on the correctness of the judgment, dismissing the writ petitions on satisfaction by the learned Single Judge that the appellants have efficacious alternate remedy of appeal.
3. We may at the outset make it clear that even though the arguments have been heard both on merits as also on the objection of alternative remedy, we shall, at the first instance, consider whether the efficacious alternative remedy of appeal is available before the appellate authority i.e. first appeal before the Deputy Commissioner (Appeals) under Section 82 of the Act of 2003 and thereafter second appeal before the Rajasthan Tax Board under Section 83 of the Act of 2003 or the writ petitions should have been directly entertained before this Court. The necessity to examine the arguments on merits advanced by the learned counsel on both the sides would therefore arise only if we reverse the judgment of learned Single Judge and hold that writ petitions should have been directly entertained before this Court, and despite there being no findings rendered by learned Single Judge on merits of the case, instead of remanding the matter to single bench, and then decide to examine the matter on merits. We shall, therefore, first confine our examination to the correctness of the dismissal of the writ petitions on the premise of availability of the efficacious alternative remedy.
4. In order, however, to understand the background in which the show cause notices were issued to the appellants to reopen the assessment already made, th
