It is well known that when an alternative remedy is available to a person then the writ petition in the High Court may not be acceptable. Punjab & Haryana High Court in the following case has held that plea of alternative remedy cannot be invoked where the question involved is of lack of jurisdiction on admitted facts.
It means that where an order of an authority suffers from error of lack of jurisdiction on admitted facts then in such case writ petition challenging such order can be filed and such writ should be accepted irrespective of the fact that the petitioner had the alternative remedy of filing an appeal against such order and he has not exhausted it before filing writ petition.
In this case penalty u/s 51 of Punjab VAT Act, 2005 was levied at the ICC barrier disputing the nature of transaction of sales by alleging that the said sales was an intra-state sales as goods were to be used in the works to be executed in Punjab, whereas the petitioner contended it to be an an inter-state sales.
This was a legal issue which has to be adjudicated by the assessing authorities and the said matter could not be decided at the ICC barrier while the goods were in transit, hence the matter was outside the jurisdiction of the authorities at ICC barrier.
The writ petition filed against such order was accepted by the High court irrespective of the fact that the petitioner had the remedy to file an appeal against such order and it was held as under:
“The plea of alternative remedy cannot be accepted as question involved in the present case is of lack of jurisdiction on admitted facts.
In the present case, the petitioner furnished all the information and raised a dispute of taxability relying upon the judgment in Kone Elevators (India) Ltd's case (supra). In such a situation there could be no question of attempt at tax evasion. Invocation of jurisdiction to impose penalty at the Information Collection Centre was not called for.”
Full judgement is as follows:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.15705 of 2010
Date of decision: 27.9.2010
M/s Thyssen Krupp Elevator (India) Pvt. Ltd.
...Petitioner
Versus
State of Punjab and another
...Respondents
CORAM: HON'BLE MR.JUSTICE ADARSH KUMAR GOEL
HON'BLE MR.JUSTICE AJAY KUMAR MITTAL
Present: Mr. Sandeep Goyal, Advocate for the petitioner. Mr. Piyush Kant Jain, Additional Advocate General, Punjab for the respondents.
ADARSH KUMAR GOEL, J ( Oral)
1. This petition seeks quashing of order dated 25.7.2010 (Annexure P-10) passed by respondent no.2 imposing penalty under Section 51(7)(b) of the Punjab Value Added Tax, 2005 (hereinafter referred to as “the Act”).
2. Case of the petitioner is that on 17.7.2010 goods of the petitioner being elevator components which were being transported to the State of Punjab were detained at the Information Collection Centre. Goods were accompanied by invoices issued by the petitioner in favour of M/s Barnala Builders & Property Consultant, Zirakpur.
3. The stand of the assessee was that goods were being transported in pursuance of an agreement for sale and nature of transaction was inter-State sale and the tax had been paid in the State from where movement of goods started. Rejecting this stand, the Excise and Taxation Officer-cum-officer-in-charge, Information Collection Centre, Kallar Khera (District Ferozepur) took the view that transaction was of intra-State sale in the State of Punjab as goods were to be used in the works to be executed in the State of Punjab.
4. In support to challenge the impugned order, learned counsel for the petitioner submits that transaction in question was clearly of inter-State sale which occasioned the movement of goods from the State of Maharashtra to the State of Punjab. Similar transaction was involved in case State of Andhra Pradesh Vs. Kone Elevators (India) Ltd. (2005) 26 PHT1 (SC) (FB) decided by Hon'ble Supreme Court wherein it was held that such a transaction will be of sale and not of works contract. In any case, this was a legal issue which required adjudication and raising thereof could not be held to be attempt at evasion. Proceedings under Section 51(7) (b) of the Act at the check post were not a substitute for adjudication of seriously disputed questions as held by this Court in Xcell Automation Vs. Government of Punjab and another (2007) 146 PLR 685. Invocation of jurisdiction for imposing penalty was not permissible where relevant documents were duly produced but a bonafide plea against taxability was raised and there was neither misdeclaration nor concealment.
5. Learned counsel for the respondent raised an objection that the order was appealable and and the writ petition was not maintainable. He also submitted that transaction was patently of works contract and not inter-State sale.
6. The plea of alternative remedy cannot be accepted as question involved in the present case is of lack of jurisdiction on admitted facts.
7. In the present case, the petitioner furnished all the information and raised a dispute of taxability relying upon the judgment in Kone Elevators (India) Ltd's case (supra). In such a situation there could be no question of attempt at tax evasion. Invocation of jurisdiction to impose penalty at the Information Collection Centre was not called for.
6. Accordingly, we allow this writ petition and quash the impugned order 25.7.2010 (Annexure P-10). It is made clear that this order will not debar the Assessing Authority to determine the question of taxability during the assessment.
(Adarsh Kumar Goel)
Judge
September 27,2010 (Ajay Kumar Mittal)
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