M/s Numeric Power Systems Ltd. vs The State of Himachal Pradesh

Rajiv Sharma, Judge

Since common questions of law and facts are involved in all these petitions, the same were taken up together for hearing and are being disposed of by a common judgment.

CWP No. 10100/2011-J

Petitioner has assailed the assessment order dated 2.11.2011 (Annexure P-8) passed by the Excise and Taxation Officer-cum-Assessing Authority, Flying Squad South Zone, Parwanoo.

CWP No. 10410/2011-A

Petitioner has challenged the orders passed by the Assessing Authority, Parwanoo dated 11.11.2011 and tax demand notices dated 11.11.2011. Notices in this petition were ordered to be issued on 2.12.2011. Respondents were directed not to take coercive steps pursuant to impugned orders passed by the Assessing Authority on the condition that the petitioner deposits 50% of the amount minus interest and penalty within a period of one month.

CWP No. 859/2012-F

Petitioner has challenged the interim assessment orders made by the Assessing Authority dated 13.12.2011 and tax demand notice dated 13.12.2011.

As per section 45 (1) (a) of the Himachal Pradesh Value Added Tax Act, 2005 (hereinafter referred to as the ''Act'' for brevity sake), appeal would lie from every original order passed by the Assessing Authority or by an Officer-in-Charge of the check post or barrier or any other officer not below the rank of Excise and Taxation Officer, to the Deputy Excise and Taxation Commissioner.

Petitioners have not chosen to assail the assessment orders passed by the Assessing Authority before the Deputy Excise and Taxation Commissioner. We are of the considered view that once the alternative remedy has been provided the same should ordinarily be availed. The Court would be loath to entertain the writ petitions, if the alternative remedy provided is speedy and efficacious. The Act is a complete Code and the machinery for adjudication of the rights, including appeal, has been provided under Chapter-VI of the Act.

Learned counsel appearing on behalf of the petitioners have vehemently argued that the Assessing Authority has passed the orders on the basis of letter dated 19.12.2008 written by the Excise and Taxation Commissioner, Himachal Pradesh to all the subordinate officers.

We have gone through Annexure R-1 dated 19.12.2008. The Excise and Taxation Commissioner had referred the matter to the Government and the Government had referred the matter for clarification to the Law Department. The Law Department has given the final opinion. In order to allay the apprehensions of the petitioners, we make it clear that in case the petitioners prefer appeal (s) before the Deputy Excise and Taxation Commissioner, the Appellate Authority shall hear and decide the appeal (s) wholly influenced by letter dated 19.12.2008 (Annexure R-1).

Learned counsel for the petitioners have also argued that as per sub-section (5) of section 45 of the Act, appeal would not be entertained by an Appellate Authority unless such appeal is accompanied by satisfactory proof of the payment of the tax, including interest payable, or of the penalty. According to proviso to sub-section (5) of section 45, Authority, if satisfied that the dealer is unable to pay the tax assessed or the penalty, he may, for reasons to be recorded in writing, entertain an appeal without depositing the tax or penalty. The order passed by the Deputy Excise and Taxation Commissioner or the Additional Excise and Taxation Commissioner is further appealable before the Tribunal constituted u/s 44 of the Act.

The Court had directed the petitioner in CWP No. 10410/2011-A to deposit 50% of the amount minus interest and penalty within a period of one month. Mr. R.L. Sood, learned Senior Advocate has submitted that the amount stood deposited in the Registry.

In view of the observations and analysis made hereinabove, we dispose of all the petitions with the following directions:

i) Petitioners are permitted to file appeal (s) against the assessment orders and the tax demand notices issued by the Assessing Authority before the Deputy Excise and Taxation Commissioner within a period of four weeks from today;

ii) The Deputy Excise and Taxation Commissioner shall hear and decide the appeal (s) wholly uninfluenced by letter dated 19.12.2008 on or before 31.12.2012;

iii) Petitioners are directed to deposit 50% of the amount minus interest and penalty before the Deputy Excise and Taxation Commissioner at the time of filing of appeal;

iv) 50% of the amount, deposited by the petitioner in CWP No. 10410/2011-A, is directed to be refunded to the petitioner to enable him to deposit the same before the Appellate Authority.

Pending application(s), if any, also stands disposed. There shall, however, be no order as to costs.