Hindustan Aeronautics Limited vs The Assistant Commissioner of Commercial Taxes, South Zone and The Commissioner of Commercial Taxes

A.S. Bopanna, J.—Learned Government Advocate to accept notice for the respondents and file Memo of Appearance within a period of four weeks.

The petitioner is calling in question the order dated 26.02.2010 passed u/s 69 of the KVAT Act, 2003 in relation to the assessment for the period from 01.04.2005 to 31.03.2009 whereby rectification is refused; The said order is impugned at Annexure - "G" to the petitions.

The learned Counsel for the petitioner while assailing the said order would contend that the Assistant Commissioner of Commercial Taxes, Enforcement 7, who has passed the said order infact has not appreciated the correct position. It is the contention of the learned Counsel that even though the documents relating to labour charges and high seas sales charges were available, the authority has not looked into the same and on the other hand, has made observation that the documents have not been produced. It is therefore contended that the very order passed in rectification proceedings on the face of it would indicate that the authority has not infact considered the rectification application in its correct perspective as errors are apparent and therefore the same calls to be interfered with by this Court.

Learned Government Advocate would however dispute the contention putforth by the learned Counsel for the petitioner. It is contended that at an earlier instance with regard to the first rectification order dated 04.02.2010, the petitioner herein was before this Court in W.P. Nos. 5262 to 5309/2010. This Court had taken note of similar contentions, but had come to the conclusion that in view of the alternative remedy of appeal u/s 62 of KVAT Act, 2003, the petitioner would have to avail the same. It is no doubt true that in the said proceedings, this Court has also taken note of the second rectification application which has been filed and produced as Annexure - "U" to the said petitions. Taking note of the same, observation was made that the said application will be considered and disposed of, in accordance with law. It is in this context, the present order dated 26.02.2010 has been passed. It is further pointed out by the learned Government Advocate that considering the narrow scope available u/s 69 of the KVAT Act, in a rectification proceeding, the authority has taken note of all these aspects of the matter and intact more than required detailed consideration has been made by the respondents'' authority and as such the same does not call for interference. It is also pointed out that against the said order passed in Writ Petition, an appeal had been preferred by the petitioner herein wherein the order of the learned Single Judge permitting the petitioner to exhaust the alternative and efficacious remedy of filing a statutory appeal is confirmed.

Learned Counsel for the petitioner would however rely on the judgment of Hon''ble Supreme Court in the case of STATE OF TRIPURA v. MANORANJAN CHAKRABORTY AND OTHERS, (2001) 10 SCC 740 , in the case of Union of India (UOI) and Another Vs. State of Haryana and Another, and also on the judgment of the Madras High Court in the case of Pooja Agro Foods v. Commercial Tax Officer (FAC), Avinashi reported in (2007) 5 VST 525 (Mad) to contend that even where there is alternative remedy the power of this Court would not be precluded under Article 226 of the Constitution of India.

In the light of the rival contentions advanced, I have carefully perused the writ papers. The fact that the grievance which has been put-forth by the petitioner herein relates to the assessment period from April 2005 to March 2009 is not in dispute. It is in this regard the petitioner had contended that the assessment made is contrary to law in as much as labour charges and high seas sales have also been included for the purpose of taxation. In this regard, the first rectification application u/s 69 of the KVAT Act was filed. The said rectification application was considered and disposed of by order dated 04.02.2010 As pointed out by the learned Government Advocate, the petitioner herein was therefore before this Court in W.P. Nos. 5262-5309/2010 (T-RES). A perusal of the order passed in the said writ petitions would indicate that this Court has taken note of the similar contentions, which has been urged at present The learned Counsel for the petitioner attempted to distinguish the said order, which was passed at that point of time, to contend that at that stage though the petitioner herein did not have the benefit to take note of Tribunal''s order that the tax is not payable on the entire transaction, the same is not the position at present. In my view, even though the tax is not liable to be paid in respect of the labour charges and high seas sales charges, more particularly when the Officer concerned has in the subsequent rectification order taken note of this fact and has also indicated that the tax is not leviable and thereafter has come to the conclusion that the documents were not produced in the re-assessment proceedings and the aspect with regard to the labour charges and high seas sales will have to be established by reappreciation of the documents and books.

In this regard, the position is clear in so far as the rectification proceedings, it is to find out whether there is error apparent. The officer has applied his mind and it is noticed that it is only on the factual aspect that the document was not available. Hence, the benefit was not granted by the respondents'' officer in the rectification proceedings. In a matter of this nature, even though the decision relied on by the learned Counsel would indicate that this Court can exercise its power under Article 226 of the Constitution of India, even when there is a provision of alternative remedy, in the instant case, when there has to be reappreciation of facts in so far as the rival contentions with regard to the availability or non availability of the documents is to be considered, the same being a serious disputed question of fact, in any event cannot be examined in a writ petition under Article 226 of the Constitution of India. When there is alternative and efficacious remedy of filing a statutory appeal provided u/s 62 of the KVAT Act, the same would be a more comprehensive remedy, where all aspects including the availability or non availability of the documents relating to the question can also be re-appreciated by the Appellate Authority. More particularly in the instant case at an earlier point, when the rectification order had been rejected, this Court had thought it fit to indicate that the proper remedy for the petitioner is to file an appeal. Therefore, in a circumstance of the present nature, when the subsequent rectification order is questioned in these petitions, I am afraid this Court cannot take a different view merely because it is pointed out on behalf of the petitioner that the authority concerned has not properly appreciated the documents even though the same were available on record. Since I have already observed that on this aspect there has to be finding of fact, this is an aspect, which is required to be considered by the Appellate Authority.

That being so, I am of the view that the grounds urged in these petitions are also the grounds, which could be urged before the Appellate Authority. Hence, I see no good ground to interfere with the order impugned m these petitions. However, liberty is reserved to the petitioner herein to avail the remedy of appeal as contemplated u/s 62 of the KVAT Act, 2003.

In terms of the above, these petitions are disposed of. No order as to costs.