Allahabad High Court
M/S Krishna Cable Network Lucknow Thru ... vs State Of U.P. Thru Prin.Secy. Tax And ... on 22 January, 2020
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 26 Case :- MISC. SINGLE No. - 35563 of 2019 Petitioner :- M/S Krishna Cable Network Lucknow Thru Prop. Ravindra Singh Respondent :- State Of U.P. Thru Prin.Secy. Tax And Registration Lko.&Ors. Counsel for Petitioner :- Ganesh Kumar Gupta,Raj Kumar Yadav Counsel for Respondent :- C.S.C. Hon'ble Alok Mathur,J.
Heard Sri Ganesh Kumar Gupta, learned counsel for the petitioner as well as Sri Ratnesh Kant Agnihotri, learned Additional Chief Standing Counsel for respondent nos. 1, 2 and 3.
In the light of the order proposed to be passed requirement of issuing notice to respondent no. 4 is dispensed with.
The petitioner has approached this Court being aggrieved by the order dated 14.10.2019, passed by the District Magistrate, Lucknow thereby reassessing the petitioner under the U.P. Entertainment and Betting Tax Act, 1979 (hereinafter referred to as "the Act, 1979").
Contention of learned counsel for the petitioner is that under the Act, 1979, petitioner is not liable to be taxed and therefore has challenged the impugned order by means of instant writ petition.
Learned Additional Chief Standing Counsel on the other hand submits that the petitioner has equally efficacious remedy by way of appeal before the Divisional Commissioner, which has been provided under Section 12 of the Act, 1979.
In response to the aforesaid objection, learned counsel for the petitioner submits that period for filing appeal as prescribed under the Act, 1979, is fifteen days from the date of service of the order and said period has expired. He further submits that he could not prefer appeal within the time period prescribed under the Act, 1979, as the time was consumed in collecting the relevant information like details of the "activated Set Top Box" from the service provider which was received by the petitioner on 05.11.2019 and the same has been annexed as annexure - 3 to the writ petition.
Heard learned counsel for the parties and perused the record.
Hon'ble Apex Court in the case of Commissioner of Income Tax and Others Vs. Chhabil Dass Agarwal, 2014 (Vol. 1) SCC 603, has clearly laid down that in the taxing statute where entire mechanism has been provided, the assessee should be relegated to the authority prescribed under the Act and the Court in exercise of jurisdiction under Article 226 of the Constitution of India should not entertain such a matter. The Apex Court held as under :
"15. Before discussing the fact proposition, we would notice the principal of law as laid down by the Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court to must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226.
16. The Constitution Benches of this Court in K.S. Rashid and Sons vs. Income Tax Investigation Commission, AIR 1954 SC 207; Sangram Singh vs. Election Tribunal, Kotah, AIR 1955 SC 425; Union of India vs. R.T. Varma, AIR 1957 SC 882; State of U.P. vs. Mohd. Nooh, AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. vs. State of Madras, AIR 1966 SC 1089 have held that though Article 226 confers a very wide powers in the matter of issuing writs on the High Court, the remedy of writ absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted."
In the present case, admittedly appeal against the order of reassessment passed by the District Magistrate lies before the Divisional Commissioner. In the peculiar circumstances of this case, the writ petition is liable to be dismissed on the ground of alternative remedy.
In view of above, this Court is of the considered opinion that the matter be relegated to the appellate authority for deciding the lis between the parties.
Learned Additional Chief Standing Counsel has no objection in case the petitioner is relegated to alternative remedy of appeal and same be decided on merits by the appellate authority.
The petitioner may approach the Divisional Commissioner concerned by filing an appeal under Section 12 of the Act, 1979, within a period of ten days from today. In case such an appeal is preferred, the same shall be decided on merits by the appellate authority in accordance with law.
With aforesaid directions the writ petition stands disposed of.
Order Date :- 22.1.2020 A. Verma (Alok Mathur, J.)