IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10829 of 2008 M/S METAL HOUSE Versus THE STATE OF BIHAR & ORS ----------- For the petitioner: Mr. Sandeep Kumar, Advocate For the respondents : Mr. Satyabir Bharti, Junior Counsel to Additional Advocate General-III ------ P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ----- Dated, the 20th August, 2008 Bihar Finance Act, 1981 (for short, ‘the Act of 1981’) is a self contained code. From an order of assessment or penalty or both passed by the prescribed authority, the Act of 1981 provides the remedy of appeal, revision and reference. 2. Section 45 of the Act of 1981 makes a provision for appeal. It reads thus: “ 45. Appeal – (1) subject to such rules as may be made by State Government under this part any dealer objecting to an order of assessment or penalty or both passed by the prescribed authority against him, or a person objecting to an order of penalty passed against him or an order under Section 27 may appeal to the Joint Commissioner or the Deputy Commissioner specially authorized in this behalf. (2) And where an order of assessment or penalty against a dealer has been passed under section 17 or 19 by an authority other than the prescribed one as a consequence of the 2 proceeding having been transferred by the Commissioner under Sub-section (5) of Section 9, the dealer may appeal in the prescribed manner to the authority next above the officer passing that order not being an authority below the rank of a Joint Commissioner. (3) No appeal under Sub-section (1) of (2) Shall be admitted unless, the dealer objecting to an order of assessment has paid twenty per centum of the tax assessed or full amount of admitted tax whichever is greater. (4) Every appeal under this section shall be filed within forty-five days of the receipt of the notice of demand but where the appellate authority is satisfied that the appellant had sufficient reason for not preferring appeal within time, it may condone the delay. (5) The appellate authority while disposing of an appeal against an order, other than an order under Section 27, may- (a) (i) confirm, annul, reduce, enhance or otherwise modify such order; or (ii) set aside the order directing the authority below to make fresh order after further enquiry on points as may be directed; and (b) in other cases pass such order as it may, for reasons to be recorded in writing, deem fit. (6) No order under this section shall be passed without giving reasonable opportunity of hearing to the appellant as also the authority whose order has been appealed against. (7) Any appeal or proceeding relating thereto filed and pending before the Deputy Commissioner since before the coming into force of this part will be deemed to have been filed and/or transferred to the Joint Commissioner or before the Deputy Commissioner specially authorized in this behalf to hear and dispose of the same, and any appeal relating to a period prior to the coming into force of this part shall after the enforcement of this part be filed before the Joint Commissioner or Deputy Commissioner specially authorized in this behalf.” 3 3. The remedy of revision is provided in Section 46 of the Act of 1981. It reads thus: “ 46. Revision – (1) Subject to such rules as may be made by the State Government an order passed on an appeal under Sub-section (1) or (2) of Section 45 may, on application, be revised by the Tribunal. (2) Subject as aforesaid any order passed under this part or the rules made thereunder, other than an order passed by the Commissioner under Sub-section (5) of Section 9 or an order against which an appeal has been provided in Section 45 may, on application be revised- (a) by the Joint Commissioner, if the said order has been passed by an authority not above the rank of Deputy Commissioner; and (b) by the Tribunal, if the said order has been passed by the Joint Commissioner or Commissioner. (3) Every application for revision under this section shall be filed within ninety days of the [communication] of the order which is sought to be revised, but where the authority to whom the application lies is satisfied that the applicant had sufficient cause for not applying within time, it may condone the delay. [(4) The Commissioner may, suo moto call for and examine the record of any proceeding recorded by any authority, officer or person subordinate to him under this Act and if he considers that any order passed therein is erroneous in so far as it is prejudicial to the interest of revenue, may pass such order as he deems fit after giving the dealer or the person concerned an opportunity of being heard.” (5) No order under this section shall be passed without giving the appellant as also the authority whose order is sought to be revised or their representative, a reasonable opportunity of being heard. (6) any revision against an appellate order filed and pending before the Joint Commissioner or a revision against any other order filed and pending before the Deputy Commissioner since before the enforcement of this part shall be deemed to have 4 been filed and/or transferred respectively to the Tribunal and Joint Commissioner; and any revision relating to a period prior to the enforcement of this part against an appellate order, or against any other order passed by an authority not above the rank of Deputy Commissioner shall, after the enforcement of this part, be respectively filed before the Tribunal and the Joint Commissioner.” 4. There is remedy of reference under Section 48 to this court which reads thus: “48. Statement of case to High Court.- (1) Within ninety days from the passing by the Tribunal of any order under Section 46 or 47, the dealer or the person in respect of whom the order has been passed or the Commissioner may, by application in writing, together with a fee of one hundred rupees, where such application is made by the dealer, require the Tribunal to refer to the High Court any question of law arising out of such order. (2) If, for the reasons to be recorded in writing, the Tribunal refuses to make such reference, the applicant may, within forty-five days of such order, either- (a) withdraw his application (and if the applicant who does so, is a dealer or a person the fee paid by him shall be refunded), or (b) apply to the High Court against such refusal. (3) If upon the receipt of an application under clause (b) of Sub-Section (2) the high Court is not satisfied that such refusal was justified, it may require the Tribunal to state a case and refer it to the High court and on receipt of such requisition the Tribunal shall state and refer the case accordingly. (4) If the High Court is not satisfied that the statements in a case referred under this section are sufficient to enable it to determine the question raised thereby, it may refer the case back to the tribunal to make such additions thereto or alterations therein as the Court may direct in that behalf. (5) The High Court upon the hearing of any such case shall decide the question of law raised thereby, and shall 5 deliver its judgment thereon containing the grounds on which such decision is founded, and shall send to the Tribunal a copy of such judgment under the seal of the Court and the signature of the Registrar, and the Tribunal shall, where necessary, amend its order in conformity with such judgment. (6) Where a reference is made to the High court under this section, the costs including the disposal of the fee referred to in Sub-section (1) shall be in the discretion of the Court. (7) The payment of the amount of tax including penalty, if any, due in accordance with the order of the Tribunal in respect of which an application has been made under this section shall not be stayed pending the disposal of such application or any reference made in consequence thereof. (8) The Tribunal or the High Court may admit an application under this section after the expiry of the period of limitation provided in this section, if it is satisfied that the applicant had sufficient cause for not presenting the application within that period.” 5. The prescribed authority passed the order of assessment for the assessment year 2001-02 under Section 17(1) of the Act of 1981 in relation to the petitioner on 15th December, 2002. That the said order of assessment is appealable under Section 45 is not controverted. However, aggrieved by the order of assessment dated 15th December, 2002, the petitioner preferred revision petition before the Commissioner, Commercial Taxes purportedly on the ground that the order of assessment was passed in breach of principles of natural justice. 6. The Commissioner, Commercial Taxes, disposed of the 6 revision application by observing that the appellant was not ready and willing to pay 20 per cent of the tax liability. The revisional authority, however, granted liberty to the petitioner to prefer appeal from the order of assessment. 7. We are afraid, no case is made out for bypassing the statutory remedy as, in our view, order dated 24th March, 2008, passed by the Commissioner, Commercial Taxes, which is sought to be challenged by the petitioner, could be challenged under Section 48 of the Act of 1981. We do not find any justification in approaching this court in extra ordinary jurisdiction when the remedy of reference is available under Section 48 of the Act of 1981. Else, as observed by the revisional authority in the impugned order dated 24th March, 2008, the petitioner may pursue the statutory remedy of appeal under Section 45 of the Act of 1981. 8. In what we have observed above, we find no justification to invoke high prerogative writ jurisdiction. 9. Writ petition is dismissed in limine. R.M. Lodha, CJ Kishore K. Mandal, J. Sunil