PALSHIKAR, J. - (1.) THESE five petitions have been filed by M/s. BSL Ltd. By these petitions, which are identical in nature, the petitioner which is a Company duly constituted and registered under the Companies Act, 1956 has challenged the show cause notice issued to it by the Commercial Taxes Department, Bhilwara, Govt. of Rajasthan. Since all the petitions involve identical questions of fact and law, with the consent of the parties, they were heard together and hence, this common order.
(2.) THE petitioner purchased diesel from Indian Oil Corporation and Bharat Petroleum Corporation during the relevent assessment year and concessional tax and surcharge was paid on it @ 3% instead of 4@ as was leviable and in so doing, the Company has misused the ST Form No. 17. According to the Department, therefore, this payment of tax @ 3% instead of 4% amounts, in the circumstances, to evasion of tax and hence, notice to show cause was issued why the Company should not be penalised for such misuse and evasion. These notices are challenged by these petitions principally on the ground that (i) the Commercial Taxes Officer, Anti- evasion, has no jurisdiction to issue the impugned notices; (ii) the entire notices and the action purported to be taken in pursuance thereto is without jurisdiction; (iii) even if the notices are validly issued, there is no evasion of any tax. Use of ST Form No. 17 was proper and hence, there is no cause of action for issuance of the notices itself. Consequently, it is void ab initio; (iv) the interpretation sought to be put on the several notifications by the State and the Commercial Taxes Officer is incorrect. If properly read, even under the said notification, the use of ST Form No. 17 by the petitioner was only on concessional rate of tax at 3% was proper; (v) alternatively it is submitted that the notification itself is liable to be quashed as ultravires the Rajasthan Sales Tax Act, 1994 (hereinafter referred to as "the Act" ). In view of the above contentions raised in the petitions, notices to show caused why the petitions should not be admitted were issued by this Court and in response to the notices, a detailed reply has been filed by the Department. By the reply, certain substantial preliminary objections have been raised to the maintainability of the petitions. The preliminary objections raised by the respondents stated briefly are as under:- (a) that no petition directly against show cause notice is maintainable; (b) that the petition is filed on 6. 3. 2000 when the notices were issued on 13. 12. 99 and after receipt of reply from the petitioners, the Assessing Authority decided the notices on 25. 2. 2000 after hearing the assessee and an order was passed in the presence of the authorised representative of the Company Mr. Sunil Surana and Mr. Heera Chand Jain. Consequently, to the knowledge of the petitioner, a valid order was made by the competent authority and, therefore, the show cause notices did not survive and culminated into an order, which ought to have been challenged; (c) that sections 84, 85 and 86 of the Act provide remedy of appeal and revision under the statute itself to any aggrieved person. In effect, effective, efficacious alternative remedy exist and, therefore, these petitions are not liable to be entertained. Apart from these five petitions pending, I have come across in the last fortnight or so several such petitions indicating that there is a growing tendency particularly in tax matters to approach the High Court as a matter of course even against the show cause notices. The Rajasthan High Court has in so far as Industrial Law is concerned taken a view in the five Judges Bench unanimously that availability of alternative remedy is a bar to maintainability of a writ petition directly. However, inspite of such authoritative pronouncement of this Court, petitions were filed directly before this Court in regard to Service Matters as defined in the Rajasthan Civil Service Appellate Tribunal Act, 1976, without approaching the Tribunal established for the purpose. Similar objections was raised regarding maintainability of the petition and it was held that existence of such remedy would act as an effective bar and normally jurisdiction should not directly be exercised in such matters. Thus, an argument that the decision in Gopi Chand Teli vs. State of Rajasthan (1), is restricted to the industrial law only was repealed. Inspite of these two decisions and several other judgments of this Court in these cases, it is also contended that the preliminary objection is liable to be overruled. Taking into consideration the fact that such question is of regular recurrence and the law on the question of alternative remedy is being flouted, I have, therefore, with the consent of the parties, decided to consider this aspect of preliminary objections first without dealing with the cases on merits. The facts in these cases are undisputed and I am, therefore, called upon to decide all these questions of law on undisputed facts. The basic question of law as to whether a writ petition against a show cause notice under the Rajasthan Sales Tax Act can be directly entertained in the effective alternative remedy existing u/s 84 and other provisions of the Act. Shri Sangeet Lodha, learned counsel appearing on behalf of the Sales Tax Department submitted the following as preliminary objections:- (a) that no petition directly against show cause notice is maintainable; (b) that the petition is filed on 6. 3. 2000 when the notices were issued on 13. 12. 99 and after receipt of reply from the petitioners, the Assessing Authority decided on 25. 2. 2000 after hearing the assessee and an order was passed in the presence of the authorised representative of the Company Mr. Sunil Surana and Mr. Heera Chand Jain, Consequently, to the knowledge of the petitioner, a valid order was made by the competent authority and, therefore, the show cause notices did not survive and culminated into an order, which ought to have been challenged. (c) that sections 84, 85 and 86 of the Act provide remedy of appeal and revision under the statute itself to any aggrieved person. In effect, effective, efficacious alternative remedy exist and, therefore, these petitions are not liable to be entertained. In support of its claim, he cited several authorities of this Court as also the Supreme Court of India. In reply to the submissions made by Shri Sangeet Lodha, Shri Vineet Kothari, learned counsel appearing on behalf of the petitioner has submitted the following in support of his claim and contends that the preliminary objections are liable to be rejected:- (i) alternative remedy is not a bar when a question of constitutional or statutory vires of a provision of law is involved; (ii) alternative remedy is not a bar where there is an authoritative pronouncement by a superior court on the question of law involved. Alternative remedy is no bar where the remedy is onerous or burdensome; (iii) when the facts are not disputed and, therefore, no investigation on the facts is necessary; (iv) where fundamental right is violated or principles of natural justice are violated; (v) when the authority issuing show cause notice totally lacks jurisdiction. (vi) Alternatively, it was pleaded by Shri Vineet Kothari that the present cases having been taken up for final hearing, the preliminary objections cannot be sustained and the matter is liable to be decided on merits. Admitted matters cannot be dismissed on the ground of availability of alternative remedy at a later stage.
(3.) I would deal with the last objection of Shri Vineet Kothari first. The question as to whether the matter or a writ petition already admitted on final hearing can be dismissed on the ground of existence of alternative remedy or not is no longer res integra in so far as this Court is concerned. I am in respectful agreement with the views expressed by a Division Bench of this Court in Laxman Singh Verma vs. State of Rajasthan & ors. (2)In this case, it has been specifically observed that even after admission of writ petition ex-parte, it is open to respondents to resist the writ petition on all available grounds including ground of maintainability of petition on the ground of efficacious alternative remedy available under Statute. I am in respectful agreement with the views expressed by the Division Bench judgment and is also binding on this Court. This judgment was delivered on 5. 11. 99. Thereafter another Division Bench of this Court took up on a reference made by Justice Dr. B. S. Chauhan by his order dated 24. 7. 97 whereby he has specifically referred the question as to whether the cases pending since 1985 can be dismissed on the ground of alternative remedy being available. It came up for adjudication before a Division Bench of this Court on 1. 8. 2000 and relying on Gopi Chand Teli vs. State of Rajasthan (supra), judgment of this Court as also the decision of the Supreme Court in Sumedico Corporation and another vs. Regional Provident Fund Commissioner (3) took the view that petitions pending final hearing can be dismissed on the ground of existence of alternative remedy relegating the party to alternative remedy. I am in respectful agreement with the view expressed in this case also. It will thus be seen that two different Division Benches, both of which are binding on me, have taken the view that where alternative remedy exists merely because the matter is admitted, it need not be heard on merits only and can be dismissed for existence of alternative remedy. In so far as this Court is concerned, therefore, the question is no longer res integra and need no further consideration by me. I reject the contention of Shri Vineet Kothari in this regard. That takes me to the rival contentions as illustrated by different decisions of different courts and the Supreme Court of India. I have to undertake adjudication of vital questions framed above. In order to determine as to whether alternative remedy in the circumstances is a bar or not, it would be better to notice different provisions on alternative remedy as provided in sections 84, 85 and 86 of the Act. " 84. Appeal to the appellate authority, (1) Subject to the provisions of section 88, an appeal against any order of an Assistant Commissioner, a Commercial Taxes Officer, an Assistant Commercial Taxes Officer or Incharge of a checkpost shall lie to the appellate authority. (2) The appeal shall be presented within sixty days of the date on which the order sought to be appealed against is communicated; but the appellate authority may admit an appeal even after the said period of sixty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period. (3) Notwithstanding anything contained in sub-section (4) of section 42, no appeal under this section shall be entertained unless it is accompanied by a satisfactory proof of the payment of tax or other amounts admitted by the appellant to be due from him or of such instalment thereof as might have become payable, or twenty per cent of the tax or other amounts assessed, whichever is higher, but the appellate authority may, for reasons to be recorded in writing waive or relax the requirement of depositing of twenty per cent of the amount of disputed demand. (4) Notwithstanding that an appeal has been preferred to the appellate authority, the tax or other sum shall, subject to the provisions contained in sub-sections (4) and (5) of section 42 be paid in accordance with the order against which an appeal has been preferred. (5) The appeal shall be in the prescribed form and shall be verified in the prescribed maner. (6) The following shall have the right to be heard at the hearing of the appeal: (a) the appellant, either in person or by the authorised representative; (b) the authority or officer against whose order the appeal has been preferred either in person or by a representative. (7) The appellate authority may, before disposing of any appeal make such further enquiry as it thinks fit, or may direct the assessing authority or the officer against whose order appeal has been preferred to make further enquiry and report the result of the same to the appellate authority and in disposing of the appeal the said authority may, (a) in the case of an order of assessment, interest or penalty. (i) confirm, enhance, reduce or annul the assessment, interest or penalty; or (ii) set aside the order of assessment, interest or penalty and direct the assessing authority to pass fresh order after such further enquiry as may be directed; and (b) in the case of any other order, confirm, cancel, vary or remand such order. (8) The appellate authority shall send a copy of the order passed by it to the appellant, the assessing authority, the Deputy Commissioner (Administration) concerned and the Commissioner. 85. Appeal to the Tax Board.- (1) An appeal shall lie to the Tax Board against. (a) an order of the State Level Screening Committee or the District Level Screening Committee passed under the Incentive Schemes or Deferment Schemes notified under section 15 or under sub-section (3) of section 25; (b) an order passed by the Commissioner with regard to determination of a disputed question under section 40 or in any proceeding in exercise of his revisional powers under section 87; (bb) an order passed by the Commissioner or a Deputy Commissioner (Administration) under sub-section (2) of section 30; and (c) an order passed by an appellate authority. (2) Any person aggrieved by any order referred to in clauses (a), (b), (bb) and (c) of sub-section (1), may file an appeal before the Tax Board within ninety days of the date on which the order sought to be appealed against is communicated to him in writing. (3) Notwithstanding anything contained in sub-section (2), the Commissioner or a Deputy Commissioner (Administration) Authority specially or generally by the Commissioner may, if aggrieved by any order referred to in clauses (a), (b) and (c) of sub-section (1), direct any officer or Incharge of a check-post to file an appeal before the Tax Board and such officer or Incharge shall file such appeal under his signatures within one hundred and eighty days of the date on which the order sought to be appealed against is communicated in writing to the Commissioner or the Deputy Commissioner. (4) In an appeal filed by a dealer u/cl. (a) of sub-section (1) against an order of refusal of the benefit of exemption from tax or deferment of tax, the Commissioner shall be a necessary party as respondent. (5) The respondent may, on receipt of notice that an appeal against an order referred to in sub-section (1) has been preferred by the appellant, notwithstanding that he may not have appealed against such order, within one hundred and twenty days in the case of an officer of the Commercial Taxes Department and within sixty days in the case of a dealer, of receipt of the notice, file a memorandum of cross- objections verified in the prescribed manner, against any part of the said referred order and such memorandum shall be disposed of by the Tax Board as if it were an appeal within the time specified in sub-section (2) or (3) (6) The Tax Board may admit an appeal or permit the filing of memorandum of cross-objections after the expiry of the limitation provided in sub-secs. (2), (3) and (5), if it is satisfied that there was sufficient cause for not presenting the same within that limitation. (7) An appeal to the Tax Board shall be made in the prescribed form and shall be verified in the prescribed manner. (8) The Tax Board, during the pendency of an appeal before it, shall not stay any proceeding but it may, on an application in writing from the dealer, stay the recovery of the disputed amount of tax, fee, interest or penalty or any part thereof on the condition of furnishing adequate security to the satisfaction of the assessing authority; and the amount found ultimately due shall be subject to interest from the date it became first due, in accordance with the provisions of this Act. (9) Notwithstanding that an appeal against an order has been preferred to the Tax Board, the tax, fee, interest or penalty shall be paid in accordance with the order against which appeal has been preferred, unless recovery of such tax, fee, interest or penalty has been stayed by the Tax Board. (10) The Tax Board shall, with the previous sanction of the State Government, make, by notification in the Official Gazette, regulations consistent with the provisions of this Act and the rules made thereunder for regulating its own procedure and the procedure of the benches thereof in all matters arising out of the exercise of its powers or the discharge of its functions; however, until the regulations are made, the Tax Board shall, subject to the provisions of this Act and the rules made thereunder, have power to regulate its own procedure and the procedure of the benches thereof in all matters arising out of the exercise of its powers and discharge of its functions. (11) The Tax Board shall, after giving both the parties to the appeal an, opportunity of being heard, pass such order thereon as it thinks fit and send a copy thereof to the appellant, the assessing authority, the authority whose order was appealed against and the Commissioner. 86. Revision to the High Court.- (1) Any dealer aggrieved by an order passed by the Tax Board under sub-section (11) of section 85 or under sub-section (1) of section 37, may, within ninety days from the date of service of such order, apply to the High Court in the prescribed form accompanied by the prescribed fee, for revision of such order on the ground that it involves a question of law. (2) The Commissioner may, if he feels aggrieved by any order passed by the Tax Board under sub-section (11) of section 85, or under sub-section (1) of Sec. 37 direct any officer or Incharge of a check-post to apply to the High Court for revision of such order on the ground that it involves a question of law; and such officer or Incharge of a check-post shall make the application to the High Court within one hundred and eighty days of the date on which the order sought to be revised is communicated in writing to the Commissioner. (3) The application for revision under sub-section (1) or sub-section (2) shall state the question of law involved in the order sought to be revised, and the High Court may formulate the question of law in any form or allow any other question of law to be raised. (4) The High Court shall after hearing the parties to the revision, decide the question of law stated to it or formulated by it, and shall thereupon pass such order as is necessary to dispose of the case. (5) Any person feeling aggrieved by an order passed under sub-section (4) may apply for a review of the order to the High Court and the High Court may make such order thereon as it thinks fit. " There are appropriate provisions under the Rajasthan Sales Tax Act itself providing for issuance of show cause notice for every action the Department chooses to take, which is likely to result in penal consequences in relation to an assessee. Looking to the entire scheme of the Act, it will, therefore, be seen that the Act provides a code in itself that provides effective and complete remedy and the provisions of the taxing statute beginning with show cause notice, grant of adequate opportunities to meet the cause mentioned in the notice and finally making of the order then providing a hierarchy of appeal or revision against possible error of fact and law, which according to the assessee, causes injustice to him. Care is taken by these provisions of embodying the basic principles of natural justice and obedience of those principles is made statutorily necessary by these provisions. It is in light of these provisions that the questions referred to above regarding alternative remedy is liable to be examined. ;