Rajasthan High Court - Jaipur
G.S. Pharmbutor Pvt. Ltd. vs State Of Rajasthan And Ors. on 22 April, 2004
Equivalent citations: RLW2004(3)RAJ1768, 2004(3)WLC31
Author: S.K. Keshote
Bench: S.K. Keshote
JUDGMENT S.K. Keshote, J.
1. Heard learned counsel for the petitioner and perused the entire record of the writ petition.
2. In the writ petition the petitioner has prayed for grant of following relief, "(i) Declare the provisions of Section 84(3) of the Rajasthan Sales Tax Act, 1994 that provides 10% of deposit of tax and other amount for entertainment of appeal as ultra vires of the Constitution.
(ii) Declare the action of respondent No. 5 in assumption of jurisdiction as illegal, arbitrary and further hold that the respondent No. 5 have no jurisdiction to pass assessment order in the matter;
(iii) Declare the order passed by the respondent No. 4 as totally arbitrary and without considering the provisions of law.
(iv) Quash/set aside the assessment orders passed by the respondent No. 5 i.e. ANNEXURES 3, 4 and 5.
(v) Such further relief for which the petitioners are entitled under the circumstances may also be awarded including cost of petition."
3. The facts of the case as stated in the writ petition are that the respondent No. 5 conducted the survey on 17th of July, 2003 of the petitioner establishment and the issued notices proposing leavy of tax on stock transfers made by the petitioner for the assessment years 2001-02, 2002-03 and 2003-04.
4. The petitioner submitted the reply to the notice on 17th of February, 2004, The respondent No. 5 fixed the case for examination/investigation of reply on 21st of February, 2004. Ex parte orders are alleged to have been passed without considering the reply and documentary evidence produced by the petitioner, by the respondent No. 5.
5. The petitioner submits that as per Section 3 of the Central Sales Tax Act there should be contract of sale prior to the movement of the goods and each and every transaction is to be examined. Without applying the said provisions and without bringing on record the evidences, proving inter-State sale, the respondent No. 5 passed the orders on 21st of February, 2004/28th of February, 2004 raising the sales tax demand. The copy of these assessment orders are submitted on the record as Annexure Nos. 3, 4 and 5 enclosed to the writ petition.
6. The petitioner appears to have filed application for recalling of the assessment orders aforesaid which are stated to have been passed ex parte. But that application has been rejected by the respondent No. 4 under the order dated 1st of April, 2004 which is on the record as Annexure-6.
7. The petitioner filed appeals against the said assessment orders but it is submitted that the same cannot be entertained because of the provisions of Section 84 (3) of the Rajasthan Sales Tax Act, 1994 mandating deposit of 10% of the disputed amount. Thus this writ petition has been filed and therein challenge has been made to the aforesaid provision and the prayers have also been made for setting aside of the sales tax assessment orders Annexure Nos. 3, 4 and 5.
8. The learned counsel for the petitioner does not dispute and in fact it is an admitted case of the petitioner that against the sales tax assessment orders Annexure Nos. 3, 4 and 5 the alternative efficacious remedy is available to the petitioner under Section 84 of the Act aforesaid. The learned counsel for the petitioner is in agreement that the appeal lies against the ex parte assessment orders also.
9. The question of jurisdiction of the assessment authority to pass the order, it is not in dispute, can also be raised before the appellate authority. Prima facie, it is difficult to accept that the ex parte order passed by the assessment officer is without jurisdiction. The very object and purpose of filing of this petition on the face of it, is to circumvent the efficacious alternative remedy, a statutory appeal provided under Section 84 of the Act so as to not to pay anything towards the sales tax demand raised under the assessment orders Annexure Nos. 3, 4 and 5 enclosed to the writ petition.
10. In our considered opinion this challenge to Sub-section (3) of Section 84 of the Act is not bona fide. It is a deliberate, purposeful and motivated challenge so as to circumvent the statutory remedy of appeal which is entertainable only on deposit of 10% of the disputed tax demanded.
11. Be that as it may be, when the validity has been challenged we consider it to go on and examine the same.
12. Sub-section (3) of Section 84 provides that notwithstanding anything contained in Sub-section (4) of Section 42, no appeal under this section shall be entertained unless it is accompanied by a satisfactory proof of the payment of tax or other amounts admitted by the appellant to be due from him or of such installment thereof as might have become payable and in case of appeal filed against ex parte assessment order, five percent of, and in other cases, ten percent of, the remaining demand over and above the admitted to tax or other amount.
13. The petitioner in para No. 39 of the writ petition admitted that it has already filed the appeal against the assessment order before the respondent No. 3. The justification given for filing of this writ petition is that the respondent No. 3 cannot entertain the same as there is mandatory requirement of depositing 10% of the demand and as per the case of the petitioner it is entirely illegal and against the provisions of law.
14. The petitioner not only has efficacious alternative remedy in the matter, but that remedy has already been availed of. In case the petitioner considers that the remedy of appeal is not efficacious or the condition mandating deposit of 10% of the disputed amount is onerous one, what for it went before the appellate authority. It filed the appeal despite of this provision, and now it wanted to avail of this remedy of writ only for the purpose of avoiding deposit of 10% of the demand of lax or to get an order from this court that without depositing the amount the appeal may be heard and decided, this writ petition has been filed.
15. When alternative statutory remedy of appeal was available and in fact it has been availed of, this petition filed by the petitioner can not be entertained by the court. If any reference is required, it may have to the decision of the Hon'ble Apex Court in the case Bombay Metropolitan Region Development Authority v. Gokak Patel Volkart Ltd. and Ors. JT 1995 (1) SCC 155 .
16. The petitioner in a matter for the same relief cannot be permitted to avail of two parallel remedies.
17. In this case precisely what the petitioner has done, it has filed the appeal against the assessment orders and for avoiding deposit of 10% of the tax demand this writ petition has been filed. That cannot be permitted.
18. Leaving that apart, we do not find any unconstitutionality in the Sub-section (3) of Section 84 of the Act, 1994. The right of appeal cannot be claimed by a litigant as a matter of course or routine. In a given case remedy of appeal is only available if it is provided under the statute. There may not be any incumbency upon the State or the Parliament to provide the appeal against the orders of the subordinate authorities. In the Statute the order of the authority/officer may be immuned from challenge i.e. remedy of appeal may not be provided. Thus non providing of appeal against the order of an officer will not render the Act itself to be invalid or unconstitutional.
19. There may not be any obligation to provide right of appeal, we fail to see if any right of appeal is provided subject to certain conditions i.e. mandate of deposit of 10% of the disputed amount, how it can be said to be an onerous right of appeal or an unconstitutional provision.
20. Earlier the requirement of deposit of the disputed amount of tax by the assessee, who wants to file the appeal, was 20% and now it has been reduced to 10% but still the petitioner is questioning the validity of this provision.
21. The learned counsel for the petitioner contended that earlier the power of waiver or relaxation of the requirement of deposit of 20% of the disputed amount of lax demanded was there and by amendment this clause has been deleted.
22. This is hardly of any substance and merit. Merely taking out the power of waiver or relaxation of the requirement mandating deposit of 10% of the disputed amount, will not render the provision invalid. We have to look into the substance of the matter. Deleting this power of waiver or the relaxation of condition of depositing the some percentage of the disputed demand of tax is to be considered in the context that the requirement mandating deposit of 20% of the disputed demand of tax has been reduced to 10% only. We do not find any merit in the writ petition.
23. In the result this writ petition fails and the same is dismissed.
24. Consequent upon the dismissal of the writ petition, the stay application, filed therewith, does not survive and the same is also dismissed.