Ajay Kumar Mittal, J. - (1.) PRAYER in this petition filed under article 226/227 of the Constitution of India is for quashing the order dated January 13, 2014, annexure P9, passed by respondent No. 2 -Assistant Excise and Taxation Commissioner -cum -Designated Officer, being in violation of principles of natural justice and without jurisdiction as the tax has been levied on such transactions which are assessable under the provisions of the Central Sales Tax Act, 1956 (in short, "the CST Act") in the State from where the movement of goods has originated. Direction has also been sought for restraining the respondents from enforcing recovery of any tax, interest or penalty in view of the impugned order. The facts, in brief, necessary for adjudication of the controversy involved, as narrated in the petition may be noticed. The petitioner is a dealer registered both under the Punjab Value Added Tax Act, 2005 (in short, "the PVAT Act") and the CST Act with respondent No. 2. It has been regularly filing the prescribed returns and paying the VAT due on adjustment of TDS/ITC, respectively. It is involved in execution of project works in most of the States including the State of Punjab. It filed the audit report in form VAT 20 dated November 20, 2011 under the PVAT Act. The petitioner was served with notices under section 29(2) of the PVAT Act dated June 7, 2013 for assessment years 2009 -10 to 2011 -12. Subsequently, on July 26, 2013, the Assessing Authority again issued notice under section 29(2) of the PVAT Act proposing to carry assessment exercise simultaneously for three years as mentioned above. The petitioner furnished details, records and books of account, etc. It also submitted letter dated December 13, 2013, annexure P6, addressed to Excise and Taxation Commissioner, Chandigarh, being representation for intervention and request to advise suitably the assessing authority. It was again served with a notice dated December 18, 2013, annexure P7, alleging that it had converted the material purchased outside the State into sales in transit to evade tax payment. It was asked to appear on December 27, 2013 and to show cause as to why deduction claimed on account of E -1 sales and excess deductions should not be disallowed and the material consumed in the execution of works contract be not taxed. After examining the matter, the Designated Officer passed the impugned assessment order dated January 13, 2014, annexure P9, for the year 2010 -11 under the PVAT Act raising an additional demand of Rs. 71,76,76,869 involving VAT Rs. 30,34,57,450, penalty under section 53 of the Act of Rs. 23,66,96,811 and interest under section 32(3) of the PVAT Act of Rs. 17,75,22,608. Hence the present petition by the petitioner.
(2.) WE have heard learned counsel for the petitioner and perused the record. After going through narration of facts and the assessment order, we find that since disputed questions of fact are involved, the petitioner should avail of the alternative remedy of appeal against the order passed by the Designated Officer. This court in Larsen & Toubro Limited v. State of Haryana : [2013] 57 VST 453 (P&H); [2012] (2) 166 PLR 345, considering the question of entertaining writ petition where alternate statutory remedy was available, had in paras 6 and 7 observed as under: 6. The following are the broad principles when a writ petition can be entertained without insisting for adopting statutory remedies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. 7. We are not inclined to entertain this petition against the assessment order as it does not fulfil any of the broad outlines noticed hereinabove. The apex court in Titaghur Paper Mills Co. Ltd. v. State of Orissa : [1983] 53 STC 315 (SC); [1983] 142 ITR 663 (SC); AIR 1983 SC 603 observed as under (pages 321 in 53 STC): 11. Under the scheme of the Act there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the prescribed authority under sub -section (1) of section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub -section (3) of section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Water Works Co. v. Hawkesford, [1859] 6 CB(NS) 336 at page 356 in the following passage: There are three classes of cases in which a liability may be established founded upon statute... But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it... the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to. The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspaper Ltd., [1919] AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant & Co., [1935] AC 532 and Secretary of State v. Mask & Co. : AIR 1940 PC 105.
(3.) EXAMINING the scope of writ jurisdiction under article 226 of the Constitution of India where disputed questions of facts are involved, a Division Bench of this court in N.C. Mahendra v. Haryana State Electricity Board : AIR 1984 P&H 26 had laid down the following guidelines: 12. An identical legal position enures within this country and High Courts have repeatedly held that the exercise of jurisdiction under article 226 of the Constitution is discretionary and not obligatory. Without being exhaustive, it is settled law that the court would not ordinarily issue a writ in favour of a person, who has (i) an adequate alternative remedy, (ii) who is guilty of delay which is unexplained, (iii) who is guilty of conduct disentitling him to relief, (iv) where the interest of justice do not require that relief should be granted, (v) where the petitioner raises a disputed question of fact, (vi) where the grant of writ would be futile, and (vii) where the impugned law has not come into force. It would follow from the above that the grant or refusal of a writ is within the judicial discretion of the court and that indeed is the line which divides the extraordinary remedy from the ordinary one by of a civil suit. (emphasis1 supplied).;