Chattisgarh High Court
M/S New Jeewan Bus Service vs The State Of Chhattisgarh on 4 May, 2022
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NAFR
HIGH COURT of CHHATTISGARH, BILASPUR
Order Reserved on 23.03.2022
Order Delivered on 04.05.2022
WPT No. 13 of 2022
M/s New Jeewan Bus Service, Prop: Akash Deep Singh Gill S/o Shri
Lakhwant Singh Gill, Aged 29 Years, R/o New Bus Stand, Pandary,
Raipur (C.G.)
---- Petitioner
Versus
1. The State of Chhattisgarh Through- Principal Secretary, Department
of Transport Mahanadi Bhawan, Mantralaya, New Raipur (C.G.)
2. The Taxation Authority/R.T.O. Raipur (C.G.)
---- Respondents
WPT No. 14 of 2022 M/s New Jeewan Bus Service, Prop: Akash Deep Singh Gill S/o Shri Lakhwant Singh Gill, Aged 29 Years, R/o New Bus Stand, Pandary, Raipur Chhattisgarh, District : Raipur, Chhattisgarh
---- Petitioner Versus
1. The State of Chhattisgarh Through Principal Secretary, Department Of Transport, Mahanadi Bhawan, Mantralaya, New Raipur Chhattisgarh, District : Raipur, Chhattisgarh
2. The Taxation Authority/R.T.O. Raipur Chhattisgarh, District : Raipur, Chhattisgarh
---- Respondent For Petitioner : Mr. Brajesh Kumar Dubey, Advocate For Res./State : Ms. Richa Shukla, Dy. Govt. Advocate -2- S.B.: Hon'ble Shri Parth Prateem Sahu, Judge CAV Order
1. The petitioner is running a transport business. He is owner of the buses and in these writ petitions, two buses bearing Deluxe Vehicle No. CG-04-EA-0167 of 2015 make and CG-04-EA- 0166 of 2015 make are subject buses against which respondents have passed two different orders on 02.12.2021 in case No. 8/eks- ;k- dj@2021 and case No. 7/eks- ;k- dj@2021 imposing the diference of tax liability, penalty and interest thereupon. In both the petitions, common reliefs have been sought, which read as under :
"10.1 That this Hon'ble Court may be pleased to kindly allow this petition by issuing writ of certiorari or any suitable writ, order and direction to quashing the impugned order dated
02.12.2021 (Annexure P-1) of Respondent No.2 in the interest of justice.
10.2 Any other relief/order deems fit and proper in the facts and circumstances of the case may kindly be passed."
2. In both the writ petitions, common grounds are raised. Hence, both these writ petitions are being heard together and disposed off by common order.
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3. Learned counsel for the petitioners would submit that the petitioner is owner of the aforementioned buses registered under the Motor Vehicles Act, 1988 (for short " the Act of 1988") and MP/CG Motoryan Karadhan Adhiniyam, 1991 (for short "Adhiniyam 1991"). Specification of the seats and sleepers in the buses were entered in the registration certificate/book after its verification i.e 5 + 20 sleepers (Deluxe seats). The respondents have issued letter/notice dated 12.03.2021 to the petitioner mentioning amount of tax and penalty. Hence, it cannot be said that the notice was issued under Rule 15 of the Chhattisgarh Motoryan Karadhan Rules, 1991 (for short "Rules of 1991") or under Rule 6-A (3) of the Rules of 1991. It is contended that the order impugned (Annexure P-1) is passed without issuing statutory notice to the petitioner, without providing opportunity of hearing and, hence, the impugned order is passed in violation of principles of natural justice. Section 8 of Adhiniyam 1991 prescribes for the filing of declaration and determination of tax payable. Section 8 (3) of Adhiniyam 1991 mandates upon the Taxation Authority to make an inquiry upon submission of declaration under sub-Section (1) of Section 8 and determining tax only after providing opportunity of hearing to the owner of the vehicle. In sub-Section (6) of Section 8 of Adhiniyam 1991 also, opportunity of hearing before imposition of penalty is provided. The respondents have not given any opportunity of hearing as provided under the Adhiniyam 1991. Referring to letter/notice -4- dated 12.03.2021 (Annexure P-2), he submits that the Taxation Authority has already determined the tax penalty and interest. Hence, it cannot be sad to be a notice as envisaged under Section 8 of the Adhiniyam 1991. As the respondents authority have not provided an opportunity of hearing before determining the tax, penalty and interest, impugned order passed is in violation of principles of natural justice. Hence, it may be quashed/set aside. Learned counsel for the petitioner contended that under Rule 15 of the Rules of 1991, notice is required to be issued in prescribed Form i.e. Form 'E-2'. Annexure P-2 is not the Form 'E-2'. Hence, it cannot be said to be a notice issued for recovery of tax. Under Rule 6-A also, notice is required to be issued in Form 'E-2'. As notice has not been issued in Form 'E- 2', the entire proceedings initiated by respondent- Taxation Authority in passing the impugned order is vitiated. In support of his contention, he places reliance upon the order passed in WP No.4620 of 2005 (South Eastern Coalfields Ltd. Company and Anr. Vs. State of Chhattisgarh and Anr .) decided on 14.10.2014, Whirlpool Corporation Vs. The Registrar of Trade Marks, Mumbai & Ors. (AIR 1999 SC 22), Union of India and Anr. Vs. Guwahati Carbon Ltd. 2012 (11) SCC 691, WPT No.63 of 2012 (Ms. Mahadev Transport Service Vs. State of Chhattisgarh & Ors) decided on 8th July 2013, Surguja Raigarh Roadways (Pvt.) Ltd., Ambikapur Vs. The Tax Officer (RTO), Bilaspur & Ors. 1973 MPLJ 1019, Bharat Bushan -5- Chawla Vs. The State of MP (AIR 1993 MP 241), Sobhagmal Kamriya Vs. State of Rajasthan (AIR 1997 Raj. 07), WP No. 4620 of 2005 (South Eastern Coalfields Ltd.Co. Vs. The State of Chhattisgarh, Sharat Kumar Barpanda Vs. State of Chhattisgarh (AIR 2017 CG 15).
4. Learned counsel for the respondents/State opposing the submission of counsel for the petitioner, raises preliminary objection with respect to maintainability of writ petition. She submits that order impugned (Annexure P-1) is appealable under Section 20 of the Adhiniyam 1991. As there is efficacious alternative remedy available for redressal of grievance under the statute, writ petition under Article 226 of the Constitution of India is not maintainable. She places reliance upon the judgment of Hon'ble Supreme Court in case of The Assistant Commissioner of State Tax and Ors. Vs. M/s. Commercial Steel Limited (Civil Appeal No. 5121 of 2021) decided on 03.09.2021. Learned counsel for the State vehemently opposes the submission of learned counsel for the petitioner on merits also that the order impugned (Annexure P-1) passed without issuance of notice and not providing opportunity of hearing to petitioner. She submits that respondent authority received a complaint against the buses run by petitioner. Complaint was filed by Kanker Roadways on 31.12.2019. Based upon which notice was issued to the petitioner on 12.3.2021. The petitioner -6- himself appeared on the date of hearing and submitted its reply vide Annexure P-9 on 22.3.2021, as appearing from Annexure P-10. The amount of tax, penalty and interest mentioned in the notice is proposed liability of tax, penalty and interest therefore it is required to be mentioned as per Form 'E-2'. Respondents authority after considering the written reply submitted by the petitioner and hearing him and further conducting verification of said buses have passed impugned order. Hence, it cannot be said that notice as required under Section 8 of the Adhiniyam 1991 is not issued and thereby opportunity of hearing was not provided to the petitioner. This submission of learned counsel for the petitioner of non-issuance of notice is contrary to the facts and documents available in record. She further submits that contention of learned counsel for the petitioner that in the letter/notice, the authority have determined the tax, penalty and interest, hence, it cannot be treated to be a notice under Section 8 of the Adhiniyam 1991, is also not correct. The amount of tax, penalty and interest mentioned in the notice is proposed tax liability with penalty and interest mentioned separately. The final determination of the tax liability and penalty and interest thereupon is increased at the time of passing of final orders. In view of the aforementioned submissions, she contended that there is no violation of principles of natural justice, impugned order has been passed after issuing notice and providing opportunity of hearing to the petitioner and, therefore, there is no -7- merit in the writ petition and it is liable to be dismissed.
5. I have heard learned counsel for the parties and also perused the record of writ petition.
6. The facts of case are that the petitioner got registered its stage carriage vehicles and deposited the tax based on self declaration. Respondent- Taxation Authority received written complaint which mentions about the short payment of tax by the petitioner with specific calculation. Respondent issued letter/notice on 12.03.2021 mentioning the amount of proposed of tax, penalty and interest thereupon, fixing the date of appearance of petitioner on 23.03.2021 to submit his reply and if his reply is not filed within the said prescribed time, proceedings under Section 16 of the Adhiniyam 1991 will be initiated. Petitioner received the notice, submitted its written reply before the Taxing Authority on 23.3.2021. From perusal of the reply submitted by the petitioner, it is apparent that petitioner himself pleaded that by the letter/notice it is informed about the difference of tax, penalty and interest. In para-3 and 4 of its reply, the petitioner narrated the number of sleepers + seats and calculation made by him for payment of tax. The petitioner was also aware of the complaint submitted against it by Kanker Roadways as pleaded in para-6 of its reply. The proceedings before the Taxation Authority is filed as Annexure P-10 would show that on the date fixed in letter/notice, petitioner appeared -8- before the authority on 23.03.2021. Petitioner himself appeared and submitted his reply. In view of the aforementioned facts of the case and considering the preliminary objection raised by learned counsel for the respondent-State, the prime consideration of this Court is whether writ petition would be maintainable when there is efficacious statutory alternative remedy is available to the petitioner in the form of statutory appeal under Section 20 of the of Adhiniyam 1991. Section 20 of the Adhiniyam 1991 reads as below :-
"20. Appeal. - Any person,-
(a) aggrieved by an order made for levy of tax or for penalty imposed under Section 13, or
(b) aggrieved by the seizure of motor vehicle made under Section 16, or
(c) aggrieved by any order passed under this Act, may, within the prescribed time and in the prescribed manner appeal to the prescribed authority, who shall, after giving such person and the Taxation Authority an opportunity of being heard, dispose of the said appeal and the decision thereon shall be final:
Provided that no appeal shall be entertained unless the amount of tax and penalty levied, in respect of which the appeal has been preferred has been paid."
7. Learned counsel for the petitioner do not dispute submission of learned counsel for the respondent that the order impugned is -9- appealable under Section 20 of the Adhiniyam 1991, but his submission is that as the order is passed in violation of principles of natural justice without issuing notice under Section 8 of the Adhiniyam 1991 in Form 'E-2', hence, the alternative remedy will not operate as bar to the maintainability of writ petition. As discussed in preceding paragraphs, the petitioner in writ petition has filed Annexure P-2 i.e. letter dated 12.03.2021 and perusal of the contents of letter, which is a notice, specifies the difference of amount of tax, penalty and interest thereupon payable by it. Wordings used in the letter/notice is that the authority proposed difference of tax paid, penalty and interest thereon to be payable by the petitioner. It is not that the authority has directed in the letter to deposit the tax amount, penalty and interest, but in para-5 of the letter, it is mentioned that the petitioner was directed to appear along with relevant documents and to make his submission in his support, by fixing the date and time of his appearance. Petitioner submitted written reply vide Annexure P-9 in detail on each aspect. Petitioner was aware as to what was the nature of complaint and what was the purpose of notice served upon him. He himself appeared and submitted reply before the Taxation Authority as appearing from the proceedings drawn by the Taxation Authority available in the record as Annexure P-10 i.e. note-sheet. In the aforementioned facts of the case, submission of learned counsel for petitioner that the petitioner was not served with notice, not provided -10- opportunity of hearing and, therefore, there is violation of principles of natural justice, is not acceptable. The said submission of learned counsel for the petitioner is repelled being contrary to documents placed on record. The other submission of learned counsel for the petitioner that the notice was not issued in prescribed Form 'E-2'. For the purpose of these proceedings, I am not intending to decide the grounds on merits considering that the notice was issued to the petitioner vide Annexure P-2 mentioning the proposed difference of tax liability with penalty and interest and availability of alternate remedy of filing appeal.
8. So far as the submission of learned counsel for petitioner that the alternate remedy is not an absolute bar, is not in dispute. Hon'ble Supreme Court in the case of The Assistant Commissioner of State Tax (supra) held that where alternative statutory remedy is available, writ petition can be entertained only in exceptional circumstances, which are as below:-
"(A) a breach of fundamental rights; (B) a violation of the principles of natural justice;
(C) an excess of jurisdiction; or (D) a challenge to the vires of the statute or delegated legislation."-11-
9. None of the above exceptional circumstance is existing in the facts of the case. In view of the aforementioned facts and circumstance of the case, there was no violation of principles of natural justice, notice was served upon the petitioner consequently he appeared and filed reply, and there is statutory alternative remedy of filing appeal against the order impugned, I am not inclined to entertain this writ petition.
10. The writ petition for the foregoing discussions are liable to be and are hereby dismissed. However, dismissal of the writ petition shall not preclude the petitioners from taking recourse to appropriate remedy which are available under Section 20 of the Adhiniyam 1991 to challenge the order impugned.
Sd/-/-/----/-/ (Parth Prateem Sahu) Judge Praveen