IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12836 of 2007 THE UNION OF INDIA Versus THE STATE OF BIHAR & ORS ----------- For the petitioner : Mr.Anil Kumar Sinha, Advocate For the respondents : Mr.Lalit Kishore, Additional Advocate General-III 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 28th August, 2008 The counsel for the petitioner submits that petitioner may be permitted to withdraw this writ petition with liberty to challenge the order dated 07th June, 2007 passed by the Assistant Commissioner, Commercial Taxes, Patna, in statutory appeal provided under Section 72 of the Bihar Value Added Tax Act, 2005 (for short, the Act, 2005). 2. Chapter XII of the Act, 2005 makes a provision of appeal, revision and review. Section 72 provides for an appeal to the Deputy Commissioner and Joint Commissioner. It reads thus: “72. Appeal to Deputy Commissioner and Joint Commissioner.- (1) Subject to such rules as may be made by State Government under this Act, any dealer objecting to an order of assessment or an order levying - 2 - interest or penalty passed by the prescribed authority against him, or an order under section 25 or a person objecting to an order of penalty passed against him or an order under section 47 may appeal to the Joint Commissioner, or, the Deputy Commissioner specially authorised in this behalf. (2) No appeal under sub-section (1) shall be admitted unless the dealer objecting to an order of assessment has paid twenty-five percent of the tax assessed or full amount of admitted tax whichever is higher. (3) Every appeal under this section shall be filed, in such form and the manner, as may be prescribed, 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 the appeal within time, it may condone the delay. (4) The appellate authority while disposing of an appeal against an order, other than an order under section 47, 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 specific points as directed; and (b) in other cases, pass such order as it may, for reasons to be recorded in writing, deem fit. (5) 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.‖ 3. A further appeal to Tribunal lies from an order of the appellate authority passed under section 72 of the Act, 2005. Section 73 reads thus: “73. Appeal to Tribunal.- (1) Subject to such rules as may be made by the State Government, any of the authorities mentioned in section 10 or any person - 3 - aggrieved by an order made by the Deputy Commissioner or Joint Commissioner under section 72 or the Commissioner under section 74 or section 77, may, prefer an appeal to the Tribunal. (2) Where an appeal is preferred by a dealer, such appeal shall not be entertained by the Tribunal unless such dealer has deposited with the Tribunal in the manner specified by it twenty five percent of the amount in dispute: Provided that the Tribunal may, for reasons to be recorded in writing, waive or reduce the amount required to be deposited under this section. (3) Every application for appeal under this section shall be filed within ninety days of the communication of the order which is sought to be appealed, but where the Tribunal is satisfied that the applicant had sufficient cause for not applying within time, it may condone the delay. (4) No order under this section shall be passed without giving the applicant as also the authority whose order is sought to be appealed or their representative, a reasonable opportunity of being heard. (5) On receipt of an appeal under sub-section (1), the Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such order thereon as it think fit, confirming, modifying or setting aside the order appealed against. (6) The Tribunal shall send the copy of every order made by it to the parties to the appeal and to the concerned authority against whose order the appeal had been preferred. (7) The appeal filed before the Tribunal under sub- section (1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within six months from the date of receipt of the appeal.‖ 4. Section 79 provides an appeal to this court on substantial question of law from an order passed by the Tribunal under Section 73 - 4 - of the Act. Section 79 reads thus: ―79. Appeal before High Court.- (1) An appeal shall lie to the High Court from every order passed by the Tribunal, if the High Court is satisfied that the case involves a substantial question of law. (2) The Commissioner or a dealer aggrieved by any order passed by the Tribunal – (i) under the Bihar Finance Act, 1981, as it stood by its repeal by section 94, on or after the date of commencement of this Act; or (ii) under this Act,may file an appeal to the High Court, and such appeal under this section shall be filed within ninety days from the date of the communication to the dealer or the Commissioner on any question of law arising out of such order. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate the question. (4) The appeal shall be heard only on the question so formulated and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the High Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) (a) The High Court shall decide the substantial question of law so formulated or involved and deliver such judgment thereon containing the grounds on which such decision is founded and may award such costs as it deems fit. (b) The High Court may determine any issue which – (i) has not been determined by the Tribunal, or (ii). has been wrongly determined by the Tribunal, by - 5 - reason of a decision on such question of law as is referred to in sub-section (1). (6) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908, (5 of 1908) relating to appeals to High Court, shall as far as may be, apply in the case of appeals under this section.‖ 5. Thus, it would be seen that the Act, 2005 provides a complete machinery for redressal of the grievance to the aggrieved assessee. 6. In this view of the matter, we accede to the request of the counsel for the petitioner for withdrawal of the writ petition and allow the writ petition to be withdrawn with liberty to challenge the impugned order in statutory appeal. It will be open to the petitioner to seek condonation of delay or exclusion of the period the writ petition remained pending before this court. 7. Writ petition stands disposed of accordingly. R. M. Lodha, CJ Kishore K. Mandal, J Sunil