IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 22ND FEBRUARY 2008 / 3RD PHALGUNA 1929 W.A.No.447 of 2008 ---------------------------------------- AGAINST THE JUDGEMENT IN W.P.(C).No.38297/2007 DATED 28/12/2007 .................... APPELLANTS: RESPONDENTS IN W.P.(C):- -------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM. 2. THE COMMERCIAL TAX OFFICER, VAT CIRCLE, CHALAKUDY. 3. THE DEPUTY COMMERCIAL (APPEALS), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM. 4. THE DEPUTY TAHSILDAR (REVENUE RECOVERY), THRISSUR. 5. THE VILLAGE OFFICER, THRISSUR. BY SPECIAL GOVERNMENT PLEADER SRI.VINOD CHANDRAN. RESPONDENT: PETITIONER IN W.P.(C):- ---------------------------------------------------------- T.S.RAJAN, S/O.T.V.SANKARAN RESIDING AT MALATHY MANDIRAM, VELLAT LANE THRISSUR-1. BY ADV.SRI.S.RAMESH BABU. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- H.L.Dattu,C.J. & K.M.Joseph,J. ----------------------------------------------- W.A.No.447 of 2008 ----------------------------------------------- Dated, this the 22nd day of February, 2008 JUDGMENT H.L.Dattu,C.J. State, being aggrieved by the orders passed by the learned Single Judge in W.P.(C).No.38297 of 2007 dated 28.12.2007 is before us in this appeal. (2) By consent of both the learned counsel, the matter is taken up for final hearing. (3) Petitioner is a partner of a firm, by name “M/s.Suresh Liquors”. The firm was registered as a dealer, both under the provisions of the Kerala General Sales Tax Act, 1963 (“KGST Act” for short) and Central Sales Tax Act, 1956 (“CST Act” for short). (4) The assessing authority has completed the assessment against the firm by its order dated 13.03.2007 for the assessment year 1990-91 and has quantified the tax liability in a sum of Rs.37,74,525.75 plus surcharge in a sum of Rs.2,41,569.65 and penal interest in a sum of Rs.24,85,621.14. After completion of the assessment proceedings, notices of demand had been issued by the assessing authority, directing the petitioner to pay a sum of Rs.37,74,526/- being tax due, Rs.2,41,570/- being surcharge and Rs.24,85,261/- being penal interest, by demand notices dated 13.3.2007. Aggrieved by the order of assessment so passed, the assessee has filed an appeal before the first appellate authority on 12.04.2007. For the reasons best known, along with the appeal the petitioner had not filed any application for grant of an interim relief. (5) Since there was no impediment for the assessing authority to proceed to recover the amount quantified and the notice of demand issued W.A.No.447 of 2008 - 2 - pursuant thereto, had initiated revenue recovery proceedings by issuing Exhibit P4 notice. That was on 3.12.2007. Immediately thereafter, petitioner has filed an application before the first appellate authority for grant of interim relief. That was on 10.12.2007. Even before that application could be considered by the first appellate authority, petitioner has approached this Court by filing the writ petition on 27.12.2007. (6) The prayers in the writ petition are - to issue a writ of mandamus commanding respondents 4 and 5 in the writ petition not to take further steps pursuant to Exhibit P4 notices pending consideration of Exhibit P2 appeal filed before the first appellate authority; to direct the 3rd respondent to pass final orders on Exhibit P2 appeal as expeditiously as possible; and lastly, to direct respondents 4 and 5 to return the movables attached and seized under Exhibit P6 mahazar to the petitioner. (7) The learned Single Judge by his order dated 28.12.2007 has allowed the writ petition and has directed the respondent authorities to keep the recovery proceedings against the residential property in abeyance till the first appellate authority decides the appeal filed by the petitioner on merits. (8) Aggrieved by the orders so passed by the learned Single Judge, the State is before us in this appeal. (9) We have heard Sri.Vinod Chandran, learned Special Government Pleader appearing for the Revenue and Sri.S.Ramesh Babu, learned counsel appearing for the assessee. (10) The one and only question that would arise for consideration and decision is, whether the learned Single Judge was justified in passing the impugned order dated 28.12.2008. In our opinion, the answer must be in the negative. We say so because, an order of assessment is passed W.A.No.447 of 2008 - 3 - against the firm. It is not in dispute that the petitioner before the learned Single Judge was one of the partners of the firm. The assessee, being aggrieved by the orders of assessment passed, has only filed an appeal before the first appellate authority. For the reasons best known, along with the appeal the petitioner had not filed any application for grant of an interim relief. Since there was no impediment for the assessing authority to proceed to recover the tax due under the Act for the assessment year 1990-91, the assessing authority has initiated revenue recovery proceedings by issuing Exhibit P4 notice. It was only then the appellant files an application before the first appellate authority for an interim relief. Without even waiting for an order from the first appellate authority on the interim application, petitioner has rushed to this Court for the reliefs already stated. (11) In a case of this this nature, the learned Single Judge on sympathetical grounds could not have entertained the writ petition and interdicted the revenue recovery proceedings for realisation of the tax due under the KGST Act. The power to tax is an inherent sovereign power of a State to collect contribution of money or other property from its citizens and the inhabitants of its territory for defraying its general expenditure. Its strategic position in the modern welfare state is such that without it no government can adequately discharge its manifold activities. (12) In the instant case, as we have already noticed, there was no orders passed by the superior forum staying the orders passed by the assessing authority. In that view of the matter, the assessing authority, in our opinion, has rightly proceeded to resort to revenue recovery proceedings to recover the tax due under the Act. In our view, if for any reason the petitioner is aggrieved by the assessment orders so passed, having filed the appeal, should have also filed an W.A.No.447 of 2008 - 4 - application for grant of interim relief. If for any reason that application was not considered by the first appellate authority, the petitioner could have either made an application before the first appellate authority to consider his application for interim relief at the earliest or in the alternative, come before this Court seeking for a mandamus to the first appellate authority to consider his application for the grant of interim relief. Without doing anything, the petitioner has approached this Court to keep in abeyance the revenue recovery proceedings in so far as his residential property is concerned. We hasten to add that existence of alternative remedy is not an absolute bar, but the fact that adequate legal remedy is available is an important factor that requires to be taken into consideration in the matter of granting reliefs. The power relating to alternative remedy is considered by the Apex Court in the case of State of H.P. v. Gujarat Ambuja Cements Ltd. ((2005) 142 STC 1). In the said decision, the Court has observed: “The rule relating to the existence of an alternative remedy as barring the writ jurisdiction under article 226 of the Constitution of India is only a rule of self imposed limitation : it is essentially a rule of policy, convenience and discretion. Despite the existence of an alternative remedy, it is within the discretion of the High Court to grant relief under article 226. At the same time, though the matter relating to an alternative remedy has nothing to do with the jurisdiction, normally the High court should not interfere if there is an efficacious alternative remedy. When a party approaches the High Court under article 226 without availing of 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. After considering the pros and cons of the case the High Court may interfere : (a) if it comes to the conclusion that the petitioner seeks the enforcement of a fundamental right; (b) if there is failure of the principles of natural justice; or (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of an Act is challenged.” (13) In the instant case, though the petitioner has filed an appeal, he did not choose to make any application along with the appeal for grant of interim relief. It is only when the respondents initiated revenue recovery W.A.No.447 of 2008 - 5 - proceedings to recover huge amounts due under the Act, petitioner has rushed to this Court for grant of certain reliefs. In our view, when the petitioner had so many alternatives as noticed by us, it was not proper for the learned single judge to have entertained the Writ Petition. Therefore, it is difficult to sustain the impugned order. (14) Accordingly, we pass the following:- Order (i) The appeal filed by the State is allowed. (ii) The orders passed by the learned Single Judge in W.P.(C).No.38297 of 2007 dated 28.12.2007 is set aside. (iii) However, we grant liberty to the petitioner, if he so desires, to request the first appellate authority to consider his application for grant of interim relief. (iv) It is needless to say that if such a request is made, the first appellate authority would consider the same and pass appropriate orders in accordance with law. Ordered accordingly. H.L.Dattu Chief Justice K.M.Joseph Judge vku/dk-