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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
PRAVEEN KUMAR GIRI, SHEKHAR B.SARAF
Dcm Shriram Industries Ltd. – Appellant
Versus
State of U.P. – Respondent
| Table of Content |
|---|
| 1. challenge on refund in tax assessment order. (Para 1 , 2) |
| 2. binding nature of high court orders. (Para 4) |
| 3. tax levied without authority violates constitutional mandate. (Para 5) |
| 4. refund ordered under specific conditions. (Para 6) |
| 5. petition disposed with directions. (Para 9) |
JUDGMENT :
PRAVEEN KUMAR GIRI, J.
1. Heard Mr. Punit Agarwal, learned counsel appearing on behalf of the petitioners and Mr. Ankur Agarwal, learned Standing Counsel for the State.
2. This is an application filed under Article 226 of the Constitution of India, wherein the writ petitioner is aggrieved by the inaction on the part of the respondent authorities in complying with the assessment order dated 01.10.2022 for the Financial Year 2017–18. By the said order, a sum of Rs. 5,00,00,000/- has been directed to be refunded, subject to the rule of unjust enrichment. It is to be noted that the issue with regard to the taxability of the amount has already been settled by a Division Bench of this High Court in Jain Distillery Private Limited vs. State of U.P. and Ors., 2021 (10) ADJ 69. The relevant paragraphs 73 and 74 are delineated below:
"73. Consequently, all the writ petitions deserve to be allo
Tax cannot be levied without lawful authority; past tax orders deemed invalid post the 101st Constitutional Amendment.
It is evident that when an order of assessment, re-assessment, rectification or revision of an assessment is made following an order of any Court, the same is required to be made within three years f....
The right to refund tax paid under an unconstitutional provision requires proof of non-passing of tax burden to consumers and timely action upon knowledge of legal changes.
The main legal point established in the judgment is the importance of exhausting statutory remedies and avoiding bypassing statutory procedures when a statutory remedy of appeal is available.
The main legal point established in the judgment is that when a statutory remedy of appeal is available, the High Court should refrain from entertaining a writ petition under Article 226 of the Const....
When there is an alternate remedy available, judicial prudence demands that court refrains from exercising its jurisdiction under constitutional provisions.
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