M/S.Chachan Brothers C.G.P.R and Oil Mills Vs. State and ors - Court Judgment

-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.

ORDER

(1)SB Civil Writ Petition No.2330/2014 (M/s Chachan Brothers Cotton Ginning Pressing Rice & Oil Mills v.

State of Rajathan & Ors.) (2)SB Civil Writ Petition No.1713/2014 (M/s Sat Sahib Enterprises v.

State of Rajathan & ORS.(3)SB Civil Writ Petition No.1726/2014 (M/s Balaji Industries v.

State of Rajathan & Ors.) (4)SB Civil Writ Petition No.1727/2014 (M/s Sat Sahib Cotton Traders v.

State of Rajathan & Ors.) (5)SB Civil Writ Petition No.1728/2014 (M/s Sat Sahib Cotton Processing Factory v.

State of Rajathan & Ors.) (6)SB Civil Writ Petition No.2057/2014 (M/s Gurunanak Industries v.

State of Rajathan & Ors.) (7)SB Civil Writ Petition No.2369/2014 (M/s Subh Laxmi Oil Industries v.

State of Rajathan & Ors.) (8)SB Civil Writ Petition No.1919/2014 (M/s Chandrabhan Jugal Kishore v.

State of Rajathan & Ors.) (9)SB Civil Writ Petition No.2196/2014 (M/s Navdurga Industries v.

State of Rajathan & Ors.) (10)SB Civil Writ Petition No.1682/2014 (M/s Balaji Cotton Ginning & Processing Factory v.

State of Rajathan & Ors.) (11)SB Civil Writ Petition No.1908/2014 (M/s Jyoti Cotton Industries v.

State of Rajathan & Ors.) (12)SB Civil Writ Petition No.1911/2014 (M/s Bharat Cotton Ginning Rice & Dal Mill v.

State of Rajathan & Ors.) (13)SB Civil Writ Petition No.1913/2014 (M/s Jhakhar Industries v.

State of Rajathan & Ors.) (14)SB Civil Writ Petition No.3156/2014 (M/s Sudesh Cotton Ginning & Pressing Factory v.

State of Rajathan & Ors.) (15)SB Civil Writ Petition No.3181/2014 (M/s R.K.Industries v.

State of Rajathan & Ors.) (16)SB Civil Writ Petition No.1893/2014 (M/s S.L.Industries v.

State of Rajathan & Ors.) -2- (17)SB Civil Writ Petition No.1906/2014 (M/s Raghav Industries v.

State of Rajathan & Ors.) (18)SB Civil Writ Petition No.1907/2014 (M/s Mittal Seeds & Chemical PVT.Ltd.v.State of Rajathan & Ors.) Date of Order :: 1st July, 2014 HON'BLE MR.JUSTICE GOVIND MATHUR Mr.Pankaj Kumar Bohra].Mr.Niraj Kumar Jain ].for the petitioneRs.Mr.H.R.Chawla ].Mr.Vinit Kumar Mathur, for the respondents...To consolidate and amend the law relating to levy of tax on sale or purchase of goods and to introduce value added system of taxation in the State of Rajasthan, the State legislature enacted “The Rajasthan Value Added Tax Act, 2003”.

(hereinafter referred to as 'the Act of 2003').The Act provides a complete scheme for assessment of the value added tax and further adjudication of the disputes in relation to the assessment made.

Chapter IX of the Act of 2003 provides remedy of appeals and revisions to the assessees against the orders passed by the Assistant Commissioner, Commercial Taxes Officer, Assistant Commercial Taxes Officer, Junior Commercial Taxes Officer or in-charge of the Check Post BarrieRs.except against the orders referred in Section 86.

As per Section 82 of the Act of 2003 the remedy of an appeal is provided against the orders of the Assessing Authority or of such authority against whose order appeal has been preferred.

An order passed under Section 82 of the Act of 2003 is further appealable before the Tax Board as per Section 83 and the -3- order passed by the Tax Board is revisable by the High Court as per Section 84 of the Act of 2003.

In the instant matters the petitioners want to invoke writ jurisdiction of this Court against the orders passed by the Appellate Authority under Section 82 or the order passed by the Tax Board under Section 83 without availing the remedy given under Chapter IX of the Act lof 2003.

The submission of learned counsel for the petitioners is that the Rajasthan Tax Board has already taken a decision contrary to the issues sought to be raised by the petitioneRs.therefore, no useful purpose shall be served by availing the remedy under the Act of 2003.

It is further pointed out that the contrary view taken by the Rajasthan Tax Board has also been affirmed by this Court in the case of C.T.O.(A-E) Sr.Ganganagar versus M/S.Durgeshwari Food Ltd., Sr.Ganganagar being S.B.Civil Sales Tax Revision Petition No.193 and 194/2009, decided on 8.12.2011, but subsequent thereto other revision petitions have already been admitted for hearing by this Court with specific assertion that in the case of C.T.O.(A-E) Sr.Ganganagar (supra) the law laid down by Hon'ble Supreme Court in Commissioner of Central Excise, Mumbai versus M/S.National Organic Chemical (Civil Appeal No.1130/2003).decided on 6.11.2008, was not taken into consideration.

Per contra, it is submitted by learned counsel for the respondents that a complete remedial mechanism is given under the Act of 2003 and no substantial reason -4- exists to ignore that by entertaining the instant petitions for writ.

Heard learned counsel for the parties.

It is well settled that the rule of exhausting of statutory remedy is a self-imposed limitation, a rule of policy and the discretion rather than a rule of law.

A writ court in exceptional cases can issue a writ notwithstanding the fact that the statutory remedy has not been exhausted.

However, the rule of policy relating to availability of alternative remedy can be ignored in exceptional circumstances only.

The exceptional circumstances differ from case to case and facts to facts.

In general, it can be said that if there is a complete lack of jurisdiction in the officer or the authority to pass the impugned order, if the order impugned is passed in flagrant violation of principles of natural justice, if the order under challenge is absolutely non-speaking and unreasoned and no effective challenge to that can be given by availing remedy of appeal, the violation of fundamental rights is apparent and availing of alternative statutory remedy shall be nothing but an empty formality, a writ court can issue a writ, order or direction by ignoring the statutory remedy.

In the cases in hand the case of the petitioners is that in view of earlier decision of the Tax Board the remedy before it shall be an empty formality.

I do not find any merit in the argument advanced.

At the fiRs.instance, it shall be appropriate to mention -5- that under the Act of 2003 a complete remedial mechanism is given including appeal before the Deputy Commissioner, the appeal before a Tax Board and then the revision petition before the High Court.

Suffice to mention that the Tax Board is supposed to have a judicial member statutorily.

A revision petition can be entertained by the High Court only in the event of having substantial question of law.

A complete and definite mechanism prescribed under the Act is not supposed to be over looked merely on the count that a contrary decision has earlier been taken.

The Tax Board or even the Appellate Authority under Section 82 can look into the other judgments which are said to be not taken into consideration earlier and arrive at a conclusion in consonance with the prevailing law.

The statement of the petitioners that now approaching the authorities under Chapter IX of the Act of 2003 shall be an empty formality, as such, does not find any support.

I do not find any exceptional circumstance in the instant matters to entertain these petitions for writ ignoring the statutory remedies available under the Act of 2003 itself.

The petitions for writ, thus, are dismissed.

( GOVIND MATHUR ),J.

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