Arshad Iqbal Kenu vs. State Of Jk And Ors (Commercial Taxes Department)

Held

The Court held that the preliminary objection raised by the State regarding the maintainability of the writ petition is sustainable. The Court reasoned that an effective alternative remedy was available to the petitioner under Section 12-D of the Act, which allows for an application to the Tribunal for referring questions of law to the High Court. The Court found that the petitioner had bypassed this statutory remedy by filing a writ petition directly. The Court also noted that the Jammu and Kashmir Writ Proceedings Rules, 1997, mandate a specific statement regarding the non-availability of alternative remedies, which was absent in the petitioner's writ petition. 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 within three weeks from the date of the order, the period spent in the present proceedings shall 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 that the Tribunal should proceed uninfluenced by any observations made. The writ petition was disposed of in terms of these directions.

Facts

The petitioner, Arshad Iqbal Kenu, filed a writ petition challenging an order dated December 7, 2017, passed by the J&K State Sales Tax (Appellate) Tribunal. The State, represented by the Advocate General, 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 contended that the writ petition was maintainable, and that the period spent before the High Court should be excluded for calculating the limitation period for filing an application before the Tribunal. The Court noted that a previous Division Bench order in a similar writ petition (OWP No. 1414/2012) had dismissed the petition as not maintainable but granted liberty to file an application before the Tribunal, excluding the period spent before the High Court.

Key Issues

1. Whether the writ petition is maintainable against the order of the Tribunal, given the availability of an alternative remedy under Section 12-D of the Act for seeking a reference of questions of law to the High Court? (Question of law turning on Section 12-D of the Act). Petitioner's arguments: - The writ petition is maintainable, and the period spent before this Court should be excluded for calculating the limitation period for filing an application before the Tribunal. - The previous Division Bench order in OWP No. 1414/2012 allowed the petitioner to raise all issues, including maintainability, and directed exclusion of time spent before the High Court. Respondent's (State's) arguments: - The writ petition is not maintainable as the petitioner has an alternative statutory remedy under Section 12-D of the Act to approach the Tribunal for a reference of questions of law. - A writ petition cannot be filed bypassing the prescribed statutory remedy.