Commissioner Of Commercial Taxes And Anr vs. J And K State Sales Tax Tribunal And Anr

Held

The Court held that the writ petition was not maintainable in its current form because the petitioners had failed to exhaust the alternative statutory remedies available to them under the J&K GST Act, 1962. Specifically, Section 12(D) of the Act provides a mechanism for aggrieved parties to seek a reference of questions of law to the High Court from the Tribunal's orders. The petitioners had approached the High Court directly by filing the writ petition on 12.07.2012, challenging an order dated 28.09.2010, without availing the remedy under Section 12(D). The Court cited an identical issue considered in 'State of J&K vs. M/s 92.7 FM and another', where a similar writ petition was dismissed for not availing the statutory remedy. However, considering the submission by the petitioners' counsel, the Court granted liberty to the petitioners to avail the appropriate remedy under law within four weeks and directed that the period spent in the present litigation be excluded for calculating the limitation period for filing such a remedy.

Facts

The petitioners, Commissioner of Commercial Taxes and another, filed a writ petition challenging an order dated 28.09.2010 passed by the J&K State Sales Tax Tribunal (respondent No. 1). This order had allowed an appeal filed by respondent No. 2 (M/s Adarsh Radio), setting aside orders passed by the First Appellate Authority and the Assessing Authority. The Assessing Authority had raised a tax liability of Rs. 74,535/, interest of Rs. 84,970/, and penalty of Rs. 1,49,070/ due to reassessment. Respondent No. 2's appeal to the Deputy Commissioner, Commercial Taxes, Appeals, was dismissed, leading to the second appeal before the Tribunal. The petitioners argued that reassessment was permissible under Section 7(11) of the J&K GST Act, 1962, and the Tribunal's finding that turnover does not include opening/closing stock was incorrect.

Key Issues

1. Whether the writ petition is maintainable before this Court, given the availability of alternative remedies under the J&K GST Act, 1962, specifically Section 12(D) which allows for reference of questions of law to the High Court after an appeal decision by the Tribunal? 2. Whether the period spent by the petitioners in prosecuting the present writ petition should be excluded for the purpose of calculating the limitation period for filing an appropriate remedy before the Tribunal? Petitioner's Arguments: The petitioners contended that the Tribunal's order was wrong and against tax jurisprudence, particularly its finding that turnover does not include opening/closing stock. They also argued for the permissibility of reassessment under Section 7(11) of the Act. They did not explicitly argue for the maintainability of the writ petition but sought permission to avail appropriate remedies. Revenue/State's Arguments: No arguments were recorded for the revenue or State. The judgment notes that Mr. KDS Kotwal, Dy. AG, appeared for the petitioners and argued on the issue of maintainability.