IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5269 of 2008 M/S G.S.ENGINEERING & CONSTRUC Versus THE STATE OF BIHAR &ORS ----------- For the Petitioners : Mr. L.N. Rastogi, Senior Advocate Mr. S.K.Sharan, 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 Dr. Ravi Ranjan Dated, the 8th August, 2008. The order dated 30th November, 2007, passed by the Deputy Commissioner of Commercial Taxes, Patliputra Circle, Pant Bhawan, Patna is impugned by means of the present writ petition. By the order dated 30th November, 2007, the Deputy Commissioner of Commercial Taxes passed an order under Section 31(1) and (2) of the Bihar Value Added Tax Act, 2005 against the petitioner. 2. The senior counsel for the petitioner would submit that the order has been passed by the Deputy Commissioner of Commercial Taxes in flagrant disregard of the principles of natural justice. He would submit that before passing that order no notice was given. He vehemently submitted that office address at which the - 2 - notice was given was already closed and intimation had already been given to the Commercial Taxes authorities in this regard. He would, thus, submit that an exceptional case for invocation of writ jurisdiction has been made out by the petitioner. 3. Having perused the proceedings, we are unable to accept the submission of the senior counsel that the order dated 30th November, 2007 suffers from flagrant disregard of the principles of natural justice. The proceeding of 15th October, 2007, pursuant to the notice issued to the petitioner under Section 31, shows that the petitioner’s Manager, Mr. Yang Tsu Ziyang appeared before the authority on that date. Along with him his Indian Assistant Raj Kumar Singh was also present. They were duly assisted by their Advocate. In the proceedings of 15th October, 2007, it has been recorded that no clarification was put forth by the petitioner and despite repeated queries, they continued to state that some mistake has crept in and they may be excused for that. 4. The Bihar Value Added Tax Act, 2005 is a self claimed Code. That provides the remedy of appeal and further appeal to this Court. We may refer to Sections 72, 73, 73A, 74, 76 and 79 in this regard, which read 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 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 - 3 - 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. 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 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 - 4 - 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. 73A. Miscellaneous Revision- Subject to the provisions of Section 73, any order, other than an order passed by the Commissioner or orders against which an appeal has been provided under Section 72, passed under this Act or the rules made thereunder may, on application, be revised: (1) by the Joint Commissioner (Administration), if the said order has been passed by an authority not above the rank of Deputy Commissioner; (2) by the Commissioner, if the said order has been passed by an authority not above the rank of Joint Commissioner; (3) by the Tribunal, if the said order has been passed by the Commissioner. - 5 - 74. Revisionary Powers of Commissioner.- 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 or it is prejudicial to the interest of revenue, pass such order as he deems fit after giving the dealer or the person concerned an opportunity of being heard. 76. Review.- Subject to such rules as may be made by the State Government under this Act, any authority appointed under section 10 or the Tribunal may review any order passed by it, if such review is, in the opinion of the said authority or Tribunal, as the case may be, necessary on account of a mistake which is apparent from the record: Provided that no such review, if it has the effect of enhancing the tax, interest or penalty or of reducing a refund shall be made unless the said authority or the Tribunal, as the case may be, has given the dealer, or the person concerned a reasonable opportunity of being heard. 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 - 6 - 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 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 relating to appeals to High Court, shall as far as may be, apply in the case of appeals under this section.” 5. It is, thus, seen that the petitioner had efficacious alternative remedy for redressal of his grievance. 6. We find no justifiable reason for bypassing the statutory remedy provided in the Act of 2005. 7. Writ petition is, accordingly, dismissed in limine. 8. It will be open to the petitioner to pursue the statutory remedy provided in the Act of 2005. 9. We clarify that in the event of appeal being preferred by the petitioner against the order dated 30th November, - 7 - 2007, the advance sales tax, if already paid or recovered will be adjusted against pre-deposit requirement of 25% under Section 72(2) of the Act of 2002. Obviously, it will be for the petitioner to submit necessary proof in that regard to the appellate authority. R. M. Lodha, CJ Dr. Ravi Ranjan, J Pawan/-