State Th.Commssr.Of Sales Tax And Ors. vs. M/S 92.7 Fm And Anr.

Held

The Court held that the preliminary objection raised by the respondent regarding the maintainability of the writ petition is sustainable. The Court found that an effective alternative remedy was available to the petitioner under Section 12-D of the J&K General Sales Tax Act, 1962, which allows for the referral of questions of law arising from the Tribunal's orders to the High Court. The Court rejected the petitioner's argument that the presence of a legal issue justifies bypassing the alternative remedy, noting that even the application for reference under Section 12-D is for questions of law. The Court also found that the writ petition failed to comply with Rule 2(d) of the Jammu and Kashmir Writ Proceedings Rules, 1997, which mandates a specific statement regarding the non-availability or exhaustion of alternative remedies. Consequently, the writ petition was dismissed on the ground of availability of an effective alternative remedy. However, the Court allowed the petitioner's request to exclude the period spent in the High Court proceedings for the purpose of calculating the limitation period for filing an application before the Tribunal, directing that if the petitioner files such an application within three weeks from the date of the order, the period spent in the writ proceedings would be excluded.

Facts

The State of Jammu and Kashmir (petitioner) filed a writ petition challenging an order dated February 22, 2012, passed by the J&K State Sales Tax (Appellate) Tribunal. The Tribunal had allowed appeals filed by M/s 92.7 FM (respondent), a broadcasting company. The State contended that the respondent was liable to pay sales tax under the J&K General Sales Tax Act, 1962, and SRO 117 of 2007 for airing commercial advertisements. Assessments for the years 2007-08 and 2008-09 were made, leading to a demand. The respondent's appeals against these assessments were dismissed by the first appellate authority but allowed by the Tribunal. The respondent raised a preliminary objection regarding the maintainability of the writ petition, arguing that the State had an alternative remedy under Section 12-D of the Act to seek a reference of questions of law to the High Court.

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 J&K General Sales Tax Act, 1962, for seeking a reference of questions of law from the Tribunal to the High Court? AND Whether the State's contention that the writ petition was rightly entertained because a legal issue regarding the interpretation of SRO 117 is involved is valid, even when an alternative statutory mechanism exists for such references? Petitioner's Arguments: The State argued that an alternative remedy is not an absolute bar to entertaining a writ petition, especially when a legal issue concerning the interpretation of SRO 117 is involved. They also contended that the writ petition had been admitted, and a previous Single Judge's order had rejected the preliminary objection, which should not be revisited. The State further requested that if the writ petition were dismissed on grounds of alternative remedy, the period spent in court should be excluded for limitation purposes. Respondent's Arguments: The respondent argued that the State had an effective alternative remedy under Section 12-D of the Act to seek a reference of questions of law from the Tribunal to the High Court. They emphasized that the writ petition was filed after the period for filing such an application had expired, and that writ petitions should not be entertained when an effective alternative remedy is available, citing State of Madhya Pradesh v. Bhailal Bhai and others. They also pointed to a Division Bench order in LPAOW No. 73/2013 which allowed them to raise the preliminary objection.