:y: 1. t;':M. y J-UGHGOUR^QR^HHAI^ISGAI^A^BII^ D.B.HQN'Bl-BSI-lRKESl-llgElBffRftWllSliR^A I^N'Bl..iSHRllR.NiCli^NDlfK/iRl,},J lWrit^RDealMo.2aOof>a010 and 8theF<^)nneGtedwritappeals[ JUDGMENtI::C3!R<3©NSl@iR«Tl6N Sd/- Dhirendra Mishra Jud^e H0N"BLESHRIR.M.GHAN!3RAK»R.J •-^' <*-y^--^-\. ;:", Sd/- R.N. Chandrakar Judge ^ ^;rdmh^d^p»»^Bt^ PClSTFGiR^jS[a6MIEMis8^^Bi^fiBR;i2&-t!B .^ffi0|3tE- j^|9|2|E)JC( AppeUant ^ Petitibner M/sSimplexlnfrastructureLin'iited Versus Respohdents StateoSlShhattiSgai'l'ianclothers HIGH COURT OF CHHATTISGARH AT BILASPUR D.B. HON'BLE SHRI DHIRENDRAMISHRA, & HON'BLE SHRI R.N. CHANDRAKAR, JJ Writ Appeal No.230 of 201 O WritApoeal No.231 of 2010 Appellant Petitioner M/s Simplex Infrastructure Limited (formerly known as Simplex Concrete Piles (India) Limited), a company incorporated under the Companies Act, 1956, having its registered office at 27, Shakespeare Sarani, Kolkata - 700017, in the State of West Bengal, and an office at C-12, Netaji Complex (2nd Floor) Mandir Chowk, Jharabhata, Bilaspur - 495001, District Bilaspur, in the State of Chhattisgarh represented by its Deputy General Manager and Power Attorney Holder, Sri Sandip Baran Das. Versus ResDondents 1. State of Chhattisgarh, Through the Secretary, Department of Commercial Taxes, DKS Mantralaya, Bhawan, Raipur (CG) 2. Commissioner of Commercial Tax, Vanijyik Kar Bhawan, Civil Lines, Raipur. 3. Additional Commissioner of Commercial Tax, Raipur. 4. Assistant Commissioner of Commercial Tax, Bilaspur. Appellant Petitioner M/s Simplex Infrastructure Limited (formerly known as Simplex Concrete Piles (India) Limited), a company incorporated under the Companies Act, 1956, having its registered office at 27, Shakespeare Sarani, Kolkata - 700017, in the State of West Bengal, and an offiee at C-12, Netaji Complex (2nd Floor) Mandir Chowk, Jharabhata, Bilaspur - 495001, District Bilaspur, in the State of Chhattisgarh represented by its Deputy General Manager and Power Attorney Holder, Sri Sandip Baran Das. Versus ResDondents 1. State of Chhattisgarh, Through the Secretary, Department of Commercial Taxes, DKS Mantralaya, Bhawan, Raipur (CG) 2. Commissioner of Commercial Tax, Vanijyik Kar Bhawan, Civil Lines, Raipur. 3. Additional Commissioner of Commercial Tax, Raipur. 4. Assistant Commissioner of Commercial Tax, Bilaspur. WritAppeal No.232of2010 WritAppeal No.233 of 2010 Writ Appeal No.237of2010 Appellant Petitioner M/s Simplex Infrastructure Limited (formerly known as Simplex Concrete Piles (India) Limited), a company incorporated under the Companies Act, 1956, having its registered qffice at 27, Shakespeare Sarani, ^\ Appellant Petitioner M/s Simplex Infrastructure Limited (formerly known as Simplex Concrete Piles (India) Limited), a company incorporated under the Companies Act, 1956, having its registered office at 27, Shakespeare Sarani, Kolkata - 700017, in the State of West Bengal, and an office at C-12, Netaji Complex (2nd Floor) Mandir Chowk, Jharabhata, Bilaspur - 495001, District Bilaspur, in the State of Chhattisgarh represented by its Deputy General Manager and Power Attorney Holder, Sri Sandip Baran Das. Versus Respondente 1. State of Chhattisgarh, Through the Secretary, Department of Commercial Taxes, DKS Mantralaya, Bhawan, Raipur (CG)_ 2. Commissioner of Commercial Tax, Vanijyik Kar Bhawan, Civil Lines, Raipur. 3. Assistant Commissioner of Commercial Tax, Bilaspur. Appellant Petitioner M/s Simplex Infrastructure Limited (formerly known as Simplex Concrete Piles (India) Limited), a company incorporated under the Companies Act, 1956, having its registered office at 27, Shakespeare Sarani, Kolkata - 700017, in the State of West Bengal, and an office at C-12, Netaji Complex (2nd Floor) Mandir Chowk, Jharabhata, Bilaspur - 495001, District Bilaspur, in the State of Chhattisgarh represented by its Deputy General Manager and Power Attorney Holder, Sri Sandip Baran Das. * Versus Respondents 1. State of Chhattisgarh, Through the Secretary, Department of Commercial Taxes, DKS Mantralaya, Bhawan, Raipur _(CG)_ 2. Commissioner of Commercial Tax, Vanijyik Kar Bhawan, Civil Lines, Raipur. 3. Assistant Commissioner of Gommercial Tax, Bilaspur. /'s v& ''^^, LS5SS5^ Writ ARpealNo.238of2010 Writ Appeal No.269 of 2010 ^^•^^^^^@®{S^^^ Kolkata - 700017, in the State of West Bengal, and an office at C-12, Netaji Complex (2nd Floor) Mandir Chowk, Jharabhata, Bilaspur 495001, District Bilaspur, in the State of Chhattisgarh represented by its Deputy General Manager and Power Attorney Holder, Sri Sandip Baran Das. Versus Respondents 1. State of Chhattisgarh, Through the Secretary, Department of Commercial Taxes, DKS Mantralaya, Bhawan, Raipur (CG)__ 2. Commissioner of Commercial Tax, Vanijyik Kar Bhawan, Civil Lines, Raipur. 3. Assistant Commissioner of Commercial Tax, Korba. Appellant Petitioner M/s Simplex Infrastructure Limited (formerly known as Simplex Concrete Piles (India) Limited), a company incorporated under the Companies Act, 1956, having its registered office at 27, Shakespeare Sarani, Kolkata - 700017, in the State of West Bengal, and an office at C-12, Netaji Complex (2nd Floor) Mandir Chowk, Jharabhata, Bilaspur - 495001, District Bilaspur, in the State of Chhattisgarh represented by its Deputy General Manager and Power Attorney Holder, Sri Sandip Baran Das. Versus Respondente 1. State of Chhattisgarh, Through the Secretary, Department of Commercial Taxes, DKS Mantralaya, Bhawan, Raipur (CG) 2. Commissioner of Commercial Tax, Vanijyik Kar^hawan, Civil Lines, Raipur. 3. Additional Commissioner of Commercial Tax, Raipur. 4. Assistant Commissioner of Commercial Tax, Bilaspur. Appellant Petitioner M/s Simplex Infrastructure Limited (formerly known as Simplex Concrete Piles (India) Limited), a company incorporated under the Companies Act, 1956, having its registered office at 27, Shakespeare Sarani, Kolkata - 700017, in the State of West Bengal, and an office at C-12, Netaji Complex (2nd Floor) Mandir Chowk, Jharabhata, Bilaspur - 495001, District Bilaspur, in the State of WntABBeal No.270 of 2010 Present: Mr. Bhaskar Pyasi, counselfor the appellant. Mr. UNS Deo, Govt. Advocate for the State. JUDGMENT (Delivered on t^eptember, 2010) --1 Ip "'' Per Dhirendra Mishra. J The above writ appeals are being disposed of by this common judgment as the petitioner's writ petitions directed against the order of Commissioner, Commercial Tax, Chhattisgarh, passed under Section 49(3) of Chhattisgarh Value Added Tax, 2005 (in short "the Act, 2005") have been @":^g@ss^ Chhattisgarh represented by its Deputy General Manager and Power Attorney Holder, Sri Sandip Baran Das. Versus Respondents 1. State of Chhattisgarh, Through the Secretary, Department of Commercial Taxes, DKS Mantralaya, Bhawan, Raipur 2. Commissioner of Commercial Tax, Vanijyik Kar Bhawan, Civil Lines, Raipur. 3. Additional Commissioner of Commercial Tax, Raipur. 4. Assistant Commissioner of Commercial Tax, Korba. Appellant Petitioner M/s Simplex Infrastructure Limited (formerly known as Simplex Concrete Piles (India) Limited), a company incorporated under the Companies Act, 1956, having its registered office at 27, Shakespeare Sarani, Kolkata - 700017, in the State of West Bengal, and an office at C-12, Netaji Complex (2nd Floor) Mandir Chowk, Jharabhata, Bilaspur - 495001, District Bilaspur, in the State of Chhattisgarh represented by its Deputy General Manager and Power Attorney Holder, Sri Sandip Baran Das. Versus Respondents 1. State pf Chhattisgarh, Through the Secretary, Department of Commercial Taxes, DKS Mantralaya, Bhawan, Raipur (CG) 2. Commissioner of Commercial Tax, Vanijyik Kar Bhawan, Civil Lines, Raipur (CG) 3. Assistant Commissioner of Commercial Tax, Bilaspur (CG). "7^ i"\ys»--^^i "^S5s^i ~v/r dismissed by the learned Single Judgeon the ground of availability of an efficacious alternative statutory remedy of appeal to the Tribunal under sub- section (4) of Section49 ofthe Act, 2005. 2. From perusal of the pleadings in the writ petitions and documents annexed therewith it appears that the Assistant Commissioner of Commercial Tax passed an ex-parte order of assessment and rejected the appellant's claim of deduction of the value of inter-State purchase and sale ofsteel and cement (Annexure P/10). The Commissioner Commercial Tax, Raipur, transferred the assessment record in respect of value addedtax and entry tax to the Assistant Commissioner, Commercial Tax, Bilaspur-11. The Assistant Commissioner, after settingaside the ex-parte assessment order(Annexure P/10), proceeded with fresh assessment andpassed the order dated 11.8.2009 (Annexure P/13) resulting in refundof Rs.1,33,13,006/- to the appellant. The Commissioner, Commercial Tax, after examination of the record of assessmentorder dated 11.8.20090fthe Assistant Commissioner, found thesame to be prejuclicial to the interest of revenue and took up the matter in suo motu revision under Section 49(3) of the Act, 2005 and issued show cause notice to the appellant-assessee. After affordingopportunityof hearing to the appellant-assessee, the impugned order dated 1 February, 2010 (Annexure P/17) was passed. 3. The petitioner's writ petitions against the impugned order of the Commissioner have been dismissed by the learned Single Judge on the ground thatthe petitioner has an efficacious alternative statutory remedy of appeal under sub-section (4) of Section 49 of the Act, 2005. 4. Shri Bhaskar Pyasi, learned counsel for the appellant, vehemently argued that the Additional Commissioner of Commercial Tax, Raipur, vide its order dated 30 November, 2006 in the petitioner'sowncase for the assessment year 2004-05, allowed deductions towards the value of inter-State purchase and sale of steel and cement by way of transfer of property in execution of the work contract. Sub-section (3) of Section 3 of the Act, 2005 provides that the Cpmmissioner and the Additional Commissioner shall exercise all powers and perform all the duties conferred or imposed on the Commissioner. By conjoint reading of Section 39, which provides for refund and Section43, it is clear that the order of refund can be passed by the Additional Commissioner. The Assistant Commissioner allowed deductions claimed by the petitioner towards value of inter-State purchase and sale of steel and cement by way of transferof property in execution of work contract f • iiB: •y ..t*i by following the earlier order of the Additional Commissioner of Commercial Tax, Raipur in petitioner's case for earlier assessment year 2004-05 as the same was binding on him and therefore, notice under Section 49(3) of the Commercial Tax Act for revising the order of the Assistant Commissioner and the impugned order of the Commissioner are illegal, invalid and without jurisdiction. Learned Single Judge ought to have exercised the jurisdiction under Article 226 of the Constitution and the petitions ought not to have been dismissed on the ground of availability of alternative remedy. Reliance is placed on the judgments of the Supreme Court in the matters of Harbanslal Sahnia and another Vs. Indian Oil Corpn. Ltd. and others and State ofH.P. andothers Vs. Gujarat Ambuja Cement Ltd. and anothei2. 5. On the other hand, learned counsel for the State, referring to the statutory appeal provided under sub-section (4) of Section 49 of the Act, 2005, argued that the writ petitions have rightly been dismissed on the ground of availability of efficacious alternative statutory remedy. 6. Heard learned counsel for the parties. 7. The Commissioner, Commercial Tax, exercising powers under sub- section (3) of Section 49 of the Act, 2005 passed the order after affording sufficient opportunity of hearing to the assessee, as is evident from perusal of the order of Annexure P/17. After examination of the record of the assessment order of Assistant Commissioner (Annexure P/13), it has been observed that the order is prejudicial to the interest of revenue of the State and the matter has been taken up in suo motu revision. Indisputably, the appellant-assessee had analternative remedy of statutory appeal against the order of Annexure P/17 under sub-section (4)ofSection 49 oftheAct, 2005. 8. In the case of Harbanslal Sahnia , it has been observed that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (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 withoutjurisdiction or the vires of an Act is challenged. ' (2003) 2SCC 107 2 (2005) 6 SCC 49.9 •ssi*- •>. e' y ''•?< ^ A. '"S ' '^^-*-"' •••' 9. In the matter of Gujaraf Ambuja Cemen^, the Hon'ble Supreme Court, While dealing with the plea regarding alternative remedy raised by the appellant, observed that the power relating to alternative remedy is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy, it is within the jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the 1-ligh Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided, the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary Jurisdiction. Referring to various decisions of the Constitution Bench, it has been observed that Article 226 of the Constitution confers on all High Courts a very wide power in the matter of issuing writs. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it issatisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The Court, in extraordinary circumstances, may exercise the power if it comes to the eonclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted. In para-21 of the judgment, the Hon'ble Supreme Court has referred to various decisions of the Supreme Court, wherein it has been held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writjurisdiction. 10. On close scrutiny of the pleadings in the writ petitions and the grounds taken by the appellant-petitioner, we find that the learned Commissioner took up the matter in suo motu revision after examination of the record of the assessment order passed by the Assistant Commissioner and after recording a finding that the order passed by the Assistant Commissioner is prejudicial to the interest of revenue of the State, and after affording sufficient opportunity of hearing to the assessee and after considering the submissions of the assessee, the order has been passed in exercise of powers under sub-section (3) of Section 49 of the Act, 2005. The appellant-petitioner has, admittedly, ah efficacious alternative statutory remedy of appeal under Section 49(4) of the Act, 2005. Thus, considering the availability of efficacious alternative remedy, thelearned Single Judge has refused to entertain the writ petitiQns, reserving liberty to the petitioner to avail the remedy of statutory appeal against the order of the Commissioner. In our considered opinion the appellant-petitioner has no ground for filing the instant appeals. There is no substance in these appeals, the same deserve to be and are, accordingly, dismissed at the ^mission stage itself. Sd/- Dhirendra Mishra Judge ~v,~ Sd/- R.N. Chandrakar Judge