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2015 Supreme(HP) 1169
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Mansoor Ahmad Mir and Sureshwar Thakur, JJ.
M/s Trishul Traders and another - Petitioners
versus
State of H.P. and others - Respondents
CWP No.2589 of 2009
Decided on: 08-10-2015
Advocate Appeared:
For the Petitioners:Mr.Goverdhan Sharma, Advocate.
For the respondents:Mr.Shrawan Dogra, Advocate General, with Mr.Romesh Verma & Mr.Anup Rattan, Addl. A.Gs., and Mr.J.K. Verma, Dy.A.G.
The main legal point established in the judgment is the principle of maintainability of a writ petition in light of the availability of an alternative efficacious remedy under the Himachal Pradesh General Sales Tax Act, 1968.
Headnote:
Maintainability - Writ Petition - Himachal Pradesh General Sales Tax Act, 1968
Fact of the Case:
The petitioners challenged an order passed by the Assessing Authority, PWN-II, District Solan, H.P. The Respondents argued that the writ petition is not maintainable as the petitioners have an alternative efficacious remedy under Section 30 of the Himachal Pradesh General Sales Tax Act, 1968.
Finding of the Court:
The court found that the writ petition is not maintainable due to the availability of an alternative efficacious remedy under Section 30 of the Act. The petitioners withdrew the writ petition with liberty to file an appeal before the competent Authority, and the court ordered that the period spent in pursuing the writ petition shall be excluded while computing the period of limitation for filing the appeal.
Issues: The main issue was the maintainability of the writ petition in light of the availability of an alternative efficacious remedy under Section 30 of the Himachal Pradesh General Sales Tax Act, 1968.
Ratio Decidendi: The court held that the writ petition was not maintainable due to the availability of an alternative efficacious remedy under Section 30 of the Act, and allowed the withdrawal of the writ petition with liberty to file an appeal before the competent Authority.
Final Decision: The court dismissed the writ petition as withdrawn, with liberty to the petitioners to file an appeal before the competent Authority, and ordered that the period spent in pursuing the writ petition shall be excluded while computing the period of limitation for filing the appeal.
Mansoor Ahmad Mir
1. Petitioners have laid challenge to the order, dated 11th September, 2008, passed by the Assessing Authority, PWN-II, District Solan, H.P., on the grounds taken in the writ petition. Respondents have filed the reply.
2. Mr.Romesh Verma, learned Additional Advocate General, stated that the writ petition is not maintainable since the petitioners have alternative efficacious remedy in terms of Section 30 of the Himachal Pradesh General Sales Tax Act, 1968, (for short, the Act).
3. A reference may be made to Section 30 of the Act as under:
“30 (1) An appeal from every original order passed under this Act or rules made thereunder shall lie – (a) if the order is made by an assessing authority or by an officer-in-charge of the check post or barrier or any other officer not below the rank of the Excise and Taxation Officer, to the Deputy Excise and Taxation Commissioner;
(b) if the order is made by the Deputy Excise and Taxation Commissioner, to the Commissioner;
(c) if the order is made by the Commissioner or any office exercising the powers of the Commissioner, to the Financial Commissioner.
(2) An order passed in appeal by a Deputy Excise and Taxation Commissioner or by the Commissioner or any officer on whom the powers of the Commissioner are conferred, shall be further appealable to the Financial Commissioner.
4. Having glance of the above Section, we are of the considered view that the instant writ petition is not maintainable for the simple reason that the petitioners have alternative efficacious remedy available.
5. At this stage, the learned counsel for the petitioners stated that the petitioners have filed the writ petition under the bona fide belief and prays for the withdrawal of the same with liberty to the petitioners to file appeal before the competent Authority and period spent in pursuing the instant writ petition may be ordered not to be counted while computing the period of limitation.
6. Keeping in view the prayer made by the learned counsel for the petitioners read with the facts, we deem it proper to dismiss the writ petition as withdrawn, with liberty to the petitioners to file an appeal before the competent Authority.
Ordered accordingly. It is made clear that in case the appeal is filed within three weeks from today, the period spent by the petitioners in prosecuting the instant writ petition shall be excluded, while computing the period of limitation.
7. Pending CMPs, if any, also stand disposed of. Copy dasti.
