IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5198 of 2008 M/S MAHARANI ENTERPRISES,PATNA Versus THE STATE OF BIHAR & ORS ----------- For the petitioner : Mr. L.N. Rastogi, Senior Advocate Mr. S.K. Sharan, Advocate For the respondents : Mr. Lalit Kishore, A.A.G. III Mr. Satyabir Bharti, Advocate. ------ P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Dr. Ravi Ranjan ------ Dated, the 8th August, 2008. M/s Maharani Enterprises, Patna has filed this writ petition challenging the legality and correctness of the order dated 7th August, 2008 passed by the Commercial Taxes Tribunal, Bihar, Patna, whereby the Tribunal remanded the matter to the appellate authority. 2. The thrust of the argument of the senior counsel for the petitioner is that the notice does not specify whether it was issued under section 20(1)(a) or 20(1)(b) of the Bihar Finance Act, 1981 ( for short ‘the Act’) and for want of specific mention of that provision, the petitioner was deprived of actual charge necessitating an action of penalty. He would, thus, submit that the entire proceedings for initiation of penalty up to the order of the Tribunal are bad in law. The senior counsel would place reliance upon the decisions namely; (i) Y. - 2 - Narayana Chetty and anr. Vs. Income-Tax Officer, Nellore and ors. (35 ITR 388), (ii) Commissioner of Sales Tax, U.P. Lucknow Vs. Anoop Wines (Sales Tax Cases 1988 Vol. 71), Commissioner of Income-Tax Vs. Smt. Kaushalya & ors. (ITR 1995 Vol. 216 660) and (iii) an unreported decision of this Court in the case of M/s Bana Glass and Crockeries House Vs. The State of Bihar and ors. (C.W.J.C. No. 12795 of 2004) dated 8th October, 2004. 3. We do not deem it necessary to deal with the authorities cited by the senior counsel as the principal issue that needs to be considered by us is: whether the facts and circumstances of the case justify bypassing the statutory remedy under section 48 of the Act. A brief survey of few provisions of the Act will show that it is a self contained code and it provides complete machinery for the redressal of the grievance to an aggrieved person relating to the assessment under that Act. 4. From an order of assessment, an appeal lies under section 45 of the Act which 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 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 - 3 - 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.” 5. From the decision by the appellate authority, any aggrieved person may challenge the order of the appellate authority under section 46 of the Act by way of revision. The said provision 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 - 4 - 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 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.” 6. From the decision of the Tribunal in the revisional jurisdiction under section 46 of the Act, the matter may be referred to this Court under section 48 of the said Act 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 - 5 - 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 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.” 7. It would be, thus, seen that the Act provides the remedy of appeal, revision and reference to an aggrieved person. We - 6 - fail to fathom reason at this stage, in approaching this Court under Article 226 of the Constitution of India when the petitioner pursued statutory remedy of appeal and revision and then instead of pursuing the remedy provided under section 48, the petitioner has sought to invoke high prerogative writ jurisdiction under Article 226 of the Constitution of India on the specious plea that entire proceedings of penalty suffer from patient illegality. If that were so, the petitioner ought to have come to this Court at the time, the notice was received by the petitioner but the petitioner never approached this court at that time. He challenged the order of penalty before the Commissioner, Commercial Taxes under section 45 of the Act. After the appellate authority had passed the order, the assessee pursued the remedy of revision under section 46 of the Act before the Commercial Taxes Tribunal. Having pursued the remedies under sections 45 and 46 of the Act, the remedy under section 48 has to be pursued, if at all, the petitioner is aggrieved by the order of the Commercial Taxes Tribunal. 8. The instant case does not make any exceptional ground for bypassing the remedy under section 48 of the Act. Moreover, the remedy of reference under section 48 of the Act is before this Court . 9. Moreover, it would not be out of place even otherwise to mention here that by the impugned order, the Tribunal has remanded the matter back to the appellate authority. The petitioner, thus, will have full opportunity to put forth his grounds in assailing the order of - 7 - penalty before the appellate authority. 10. All in all, in our view, there is no justifiable ground for invocation of writ jurisdiction. Writ petition is liable to be dismissed and is dismissed in limine. R.M. Lodha, CJ Dr. Ravi Ranjan, J. Anil/