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Judgment
Heard Mr. B Roy, learned counsel appearing for the petitioner as well as Mr. DC Nath, learned counsel appearing for the respondent-Revenue.
By means of this writ petition, the petitioner has challenged the notification dated 11/15.09.2015 (Annexure-1A to the writ petition), the notification dated 03.10.2015 (Annexure-2 to the writ petition) and the notification dated 05/08.07.2016 (Annexure-3 to the writ petition). The petitioner has further urged this Court to restrain the respondents from acting in furtherance of those notifications (Anenxure-1A,2&3 to the writ petition) and the order of penalty dated 02.01.2015 passed under Section 25(4) of the TVAT Act, 2004 (Annexure-10 to the writ petition) and the order of penalty dated 02.01.2015 passed under Section 9(2) of the CST Act, 1956 read with Section 25(4) of the TVAT Act, 2004 (Annexure-11 to the writ petition) and the order dated 15.11.2015 (Annexure-12 to the writ petition).
Under the garb of challenging the notifications, Annexure- 1A ,2 & 3 to the writ petition, the petitioner has substantively challenged the legality of the orders of penalty dated 02.01.2015 (Annexure-10 & 11 to the writ petition) and the order dated 15.12.2015 (Annexure-12 to the writ petition) challenging which the petitioner had earlier approached this Court by filing a revisional petition being CRP 06/2017 disposed by the order dated 03.05.2017 which reads as under:
"03.5.2017
In view of the order passed today in the connected IA No. 105/2017 the instant petition also stands disposed of."
It is apparent that the said revisional petition being CRP 06/2017 was disposed of in view of the order passed in IA 105/2017. On 03.05.2017 in IA 105/2017 (arising from CRP 06/2017) the following order was passed:
"03.5.2017
Heard Mr. B Roy, the learned counsel for the applicant. Also heard Mr. D C Nath, the learned counsel for the State-respondents.
The application appears to be not maintainable in view of the latest decision of the Apex Court in Patel Brothers Vs. State of Assam and Ors., (2017) 2 SCC 350. Confronted with this, the learned counsel for the applicant prays for allowing him to withdraw the revision petition[CRP No.6/2017] with a liberty to file fresh case.
Prayer is allowed.
Application stands disposed of."
In Patel Brothers Vs. State of Assam and Ors., (2017) 2 SCC 350, the Supreme Court has held that there cannot be any extension of time by way of interpretation or otherwise when the statute has absolutely barred condonation. It is apparent that this Court had allowed the petitioner to withdraw the revision petition being CRP 06/2017 with a liberty to file fresh case. The incapacity as pointed out in Patel Brothers (supra) still continues.
The manner in which this writ petition has been filed by the petitioner on the pretext of challenging the said notifications is highly improper and against the public policy. The disability in view of Patel Brothers (supra) does not entitle the petitioner to approach this Court to challenge the orders of penalty or the orders of assessment even indirectly. It transpires that the challenge against those notifications is ploy to substantively challenge the orders of penalty when the remedy provided by the statute has been exhausted. The notifications which are under challenge merely determine division of jurisdiction within the four corners of the relevant law.
Even if, the petitioner has in any manner suffered prejudice by those notifications, the petitioner should not have couched the challenge against them with the challenge as advanced against the orders of penalty dated 02.01.2015 (Annexure-10 and 11 to the writ petition) and the order dated 15.12.2015 (Annexure-12 to the writ petition). The challenge against those orders of penalty has been scuttled by this Court in the earlier revision petition being CRP 06/2017 observing that such challenge is barred by express provision of limitation and no condonation is permissible in view of Patel Brothers (supra). Hence, the petitioner cannot be allowed to urge this Court to retrieve a proceeding which has been declared 'not maintainable' in the earlier proceeding and the disability based on which the proceeding was declared untenable or not maintainable continues in perpetuity.
Hence, in our considered view, this writ petition cannot be maintained and accordingly, the same is dismissed.
However, there shall be no order as to costs.