- (1.) REPORTABLE/- By way of the instant writ petition, the petitioner has sought the following relief: "(i) Quash and set aside the impugned assessment order dated 30.9.2010 (Annexure-33) passed by the respondent no. 3. (ii) Quash and set aside the extension order of the Commissioner, Commercial Tax Department, Rajasthan dated 29.3.2010 (Annexure-34). (iii)Restrain the respondents not to recover any demand in pursuance of the impugned order dated 30.9.2010 and also to restrain further similar proceedings. (iv) Any other appropriate writ, order or direction which may be considered just and proper in the facts and circumstances of the case may kindly also be issued in favour of the petitioner."
(2.) CONTEXTUAL facts of the case, in nub, depict that the petitioner M/s. ABB LIMITED is a company registered under the Companies Act and engaged in the business of sale and supply of electronic and electrical goods used in all type of industries including power generation and transmission. It is also undertaking contracts regarding the electrical and electronic installations. The petitioner - company has invoked the writ jurisdiction of this Court as huge demand of Rs. 113,82,18,740/- has been created by respondent no.3 against the company without jurisdiction and by an order, which is ante dated and time barred. It is averred that the petitioner received contracts from various companies for supply of goods in the course of inter-state trade and commerce. Pursuant to the said contracts, the petitioner company made sales in the course of subsequent inter-state trade and commerce being covered under Section 3(b) and Section 6(2) of CST Act to the said companies disclosing sale in the VAT/CST returns filed under the provisions claiming exemption in accordance with the provisions of CST Act. He submitted all the required documents, declaration forms, WCT, TDS Certificate, input tax, verification certificate and the replies before the Assessing Officer, but despite there being all documents and law in his favour, the respondent no.3 sans considering them passed an arbitrary order disallowing the exemption claimed on the subsequent inter-state sale by converting it to a local sale transaction and led additional tax, interest and penalty vide impugned order dated 30th September, 2010. Being aggrieved by the said assessment order, the petitioner has assailed the impugned order dated 30th September, 2010 passed by the respondent no.3 on the following grounds: (i) That the impugned order dated 30th September, 2010 is without jurisdiction and time barred. It was stated before the Assessing Authority that proceedings were already pending before the regular Assessing Authority, hence in the same matter, the anti evasion and respondent no.3 had no jurisdiction to raise the demand. (ii) Learned counsel for the petitioner took me through the provisions of Section 24 (5) of the Rajasthan Value Added Tax Act and canvassed that no assessment order under this Section could be passed after the expiry of two years from the end of the relevant year, however, the Commissioner could for the reasons to be recorded in writing, extend in a particular case such time limit by a period not exceeding six months. A period of two years, in-fact, expired on 31st March, 2010 and the Commissioner extended the period by six months. Thus, the Assessment Order was required to be passed latest by 30th September, 2010, but the same was communicated to the petitioner on 23rd November, 2010, which cannot be said to be an order in the eye of law. Learned counsel further canvassed that the order was not an order unless it was served upon the person concerned. The order dated 30th September, 2010 for the assessment year 2007-08 passed by the respondent no. 3 is ante dated as it was served upon him on 23rd November, 2010, hence it was intelligibly time barred and void ab-initio. iii) For the assessment year 2006-2007 dated 29th September, 2009, the assessment order was passed by the Commercial Tax Officer, Circle-B, Jaipur, where subsequent inter-state sale transactions and other transactions were considered and exemption was allowed in relation to the same contracts. Prior to that also the exemption was being granted on similar transactions and similar contracts by the concerned authorities, but this time the authorities have taken the conflicting view, which is contrary to the provisions of law. The Assessing Authority " respondent no.2 did not consider the individual transaction, but considered all the transactions in general and passed the impugned order. The Assessing Authority also failed to distinguish the present case from the earlier assessment years and no cogent reason was assigned to take the contrary view. Albeit, the petitioner filed the reply before the Assessing Authority, but the same did not afford the petitioner an opportunity of being heard and the impugned order was passed sans giving any opportunity of proper hearing. The impugned assessment order is fundamentally bad in the eye of law and erroneous. Learned counsel for the petitioner in support of the afore-stated arguments has cited the following judgments rendered by Hon'ble Apex Court from time to time: i) Whirlpool Corporation Versus Registrar of Trade Marks, Mumbai reported in (1998) 8 Supreme Court Cases I; ii) Mariamma Roy Versus Indian Bank and others reported in (2009) 16 Supreme Court Cases 187; iii)Godrej Sara Lee Limited Versus Assistant Commissioner (AA) And Another reported in (2009) 14 Supreme Court Cases 338; iv) M/s. Paradip Port Trust Versus Sales Tax Officer and others reported in AIR 1999 Supreme Court 552; v) Tata Engineering and Locomotive Co. Ltd. Versus Assistant Commissioner of Commercial Taxes and Others reported in Salex Tax Cases Volume XXVI 1970 page 354. Presuming that the argument of availing the alternate efficacious remedy shall be raised by the learned counsel for the respondents, learned counsel canvassed that under Article 226 of the Constitution, the High Court has a discretion to entertain or not to entertain a writ petition, but the High Court has imposed upon itself certain restrictions, one of which is that if the effective efficacious remedy is available, the High Court would not normally exercise its jurisdiction, but the Hon'ble Apex Court in umpteen cases has repeatedly held that if the principle of natural justice is found to have taken place or the order is wholly without jurisdiction or the vires of the Act are challenged or the fundamental right of the petitioner is infringed, then the High Court should not dismiss the writ petition in limine and admit the petition for its adjudication. A bird's eye view of some of the decisions of Hon'ble Apex Court throwing light on this issue needs to be taken into consideration. In the case of Whirlpool Corporation Versus Registrar of Trade Marks, Mumbai reported in (1998) 8 Supreme Court Cases I, the Hon'ble Apex Court held thus: "But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."
(3.) SIMILARLY, in the case of Mariamma Roy Versus Indian Bank and others reported in (2009) 16 Supreme Court Cases 187, the Hon'ble Apex Court observed as under:- "In our view, the High Court was not justified in passing the impugned order on the aforesaid ground. It is well settled that even if an alternative remedy was available to an aggrieved party against a particular order, but if it was open to such party to move a writ application and the court has the power to entertain the same if it finds that while passing the order there has been a violation of the principle of natural justice. That being the position, in the present case the appellant was not served with any notice before passing the impugned order." Further, relying upon the judgment of Whirlpool Corporation (supra), the Hon'ble Apex Court in the case of Godrej Sara Lee Limited Versus Assistant Commissioner (AA) And Another reported in (2009) 14 Supreme Court Cases 338, observed as under:- "13. Even otherwise, in our opinion, the question as to whether the said notification could have a retrospective effect or retroactive operation being a jurisdictional fact, should have been determined by the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India as it is well known that when an order of a statutory authority is questioned on the ground that the same suffers from lack of jurisdiction, alternative remedy may not be a bar." Learned counsel referred one more judgment rendered in the case of M/s. Paradip Port Trust Versus Sales Tax Officer and others reported in AIR 1999 Supreme Court 552, wherein the Full Bench of the Hon'ble Apex Court held thus: "2. By the impugned judgment, the High Court has dismissed the writ petitions filed by the appellant on the view that the alternative remedy of an appeal against order of assessment, is available under the Sales Tax law and since the said remedy is available the writ petitions could not be entertained. Having regard to the question that was involved in the writ petitions related to interpretation of sub-clause (d) of Clause 29 A of Article 366 of the Constitution and the taxability of the transactions in respect of which sales tax has been assessed by the Sales Tax Officer. We are of the view that the High Court should have entertained the writ petitions and should have considered the said question instead of requiring the appellant to avail the remedy of appeal under the Sales Tax Act." ;