Himaliyan Enterprises Pulwama vs. State Of Jk And Others

Held

The High Court held that the preliminary objection raised by the respondent State regarding the maintainability of the writ petition was sustainable. The Court found that an effective alternative remedy was available to the petitioner under Section 12-D of the Act, which allows for the reference of questions of law arising from the Tribunal's order to the High Court. The Court noted that the petitioner had not stated in the writ petition that an alternative remedy was unavailable or had not been availed, contrary to Rule 2(d) of the Jammu and Kashmir Writ Proceedings Rules, 1997. However, the Court found merit in the petitioner's argument that the period spent before the High Court should be excluded for calculating the limitation period for filing an application before the Tribunal. Therefore, the Court directed that if the petitioner files an application before the Tribunal seeking a reference of questions of law within three weeks from the date of the order, the period spent in the present proceedings would be excluded for calculating the limitation. The Court explicitly stated that it had not expressed any opinion on the merits of the questions raised in the writ petition, and the Tribunal should proceed uninfluenced by any observations made. The writ petition was disposed of in terms of these directions.

Facts

The petitioner, Himaliyan Enterprises Pulwama, filed a writ petition challenging orders dated 03.02.2011 (Assessing Authority), 28.11.2011 (Appellate Authority), and 14.10.2014 (J&K State Sales Tax (Appellate) Tribunal). The respondent State raised a preliminary objection regarding the maintainability of the writ petition, arguing that the petitioner had an alternative remedy under Section 12-D of the Act to seek a reference of questions of law from the Tribunal to the High Court. The petitioner's counsel argued that the writ petition was maintainable, and the issue had been decided by a Division Bench in a previous case (OWP No. 1414/2012), which had dismissed a similar petition but granted liberty to file an application before the Tribunal within three weeks, excluding the period spent in court. The High Court considered the provisions of Section 12-D of the Act and the previous judgment.

Key Issues

1. Whether the writ petition is maintainable before this Court, given the availability of an alternative remedy under Section 12-D of the Act for referring questions of law to the High Court from the Tribunal's order? Petitioner's Arguments: The petitioner contended that the writ petition was maintainable, referencing a previous Division Bench order (OWP No. 1414/2012) that, while dismissing a similar petition, allowed the petitioner to file an application before the Tribunal within three weeks, excluding the period spent in court. They also argued that tax matters were initially listed before a Single Judge and later before a Division Bench, explaining the procedural path. Respondent's Arguments: The respondent State argued that the writ petition was not maintainable because the petitioner had an effective alternative remedy under Section 12-D of the Act to approach the Tribunal for a reference of questions of law to the High Court. They also raised a preliminary objection regarding the maintainability of the writ petition itself.