SIEMENS LTD. V. COMMISSIONER OF COMMERCIAL TAX

CWJC/3258/2009

AI Insights

The case involves Siemens Ltd., a company registered under the Companies Act, 1956, which filed a writ petition against the Commissioner of Commercial Taxes, Bihar, and others. The petition pertained to the proceedings under the Central Sales Tax Act for the financial year 2005-06, where the petitioner contested the jurisdiction of the Bihar Sales Tax Authorities and the rate of tax assessed. The petitioner argued that all returns were filed, and taxes were paid, claiming a deduction under Section 6(2) of the Central Sales Tax Act. The court found that there was an alternative statutory remedy available through appeals under the Central Sales Tax Act, which the petitioner had not exhausted, leading to the dismissal of the writ petition.

• Counselvise Citation: [2009] 140 COUNSELVISE.COM (IT) 726390 (HC-PATNA)
• Appeal Type: Others
• Pronouncement Date: 19-03-2009
• Assessment Year: misc
• Other Referred Cases: K.S. Rashid & Sons Vrs. Income Tax Investigation Commission (AIR 1954 SC 207), Titagarh Paper Mills Co. Ltd. and Anr. Vrs. The State of Orissa and another (A.I.R. 1983 SC 603)
• Laws Referred To: Central Sales Tax Act, 1956, Bihar Value Added Tax Act, 2005
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: M S LALIT KISHORE AAG 3 WITH SATYABIR BHARTI AC
• Assessee Lawyers: M S K N JAIN R USHA
• Keywords: Central Sales Tax; Efficacious Alternative Remedy; Jurisdiction; Statutory Appeal; Value Added Tax
• Section: 6(2)

Judgement Text

" IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3258 of 2009 SIEMENS LTD., A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956 HAVING ITS CORPORATE AND REGISTERED OFFICE AT 130, PANDURANG MARG, WORLI, MUMBAI-400 018 AND BUSINESS ADDRESS AS PLOT 6A, SECTOR 18, HUDA, GURGAON -122015 AND ALSO LOCAL ADDRESS AS D RAM PLAZA, EXHIBITION ROAD, IN THE TOWN AND DISTRICT OF PATNA THROUGH ITS ATTORNEY AND SENIOR MANAGER, INDIRECT TAXATION, EASTERN REGION,SRI SUDIPTO GUPTA, SON OF SRI SUNIT KUMAR GUPTA, RESIDENT OF 42/2 ABHAY PADA SCHOOL ROAD, MOHALLAH, P.O. AND P.S. THAKURPUKUR IN THE TOWN OF KOLKATA, WEST BENGAL. -PETITIONER Versus 1. COMMISSIONER OF COMMERCIAL TAXES, BIHAR, PATNA. 2. COMMERCIAL TAX OFFICER, SPECIAL CIRCLE, PATNA. 3. THE STATE OF BIHAR. -RESPONDENTS ****** For the petitioner : M/s K.N. Jain & R. Usha For the Respondents: M/s Lalit Kishore, AAG 3, With Satyabir Bharti, AC. 2 19.03.2009 Petitioner is a registered dealer, both under the Bihar Value Added Tax Act, 2005, as also under the Central Sales Tax Act, 1956. The writ petition relates to the proceedings under the Central Sales Tax Act for the financial year 2005-06. 2 It is the case of the petitioner that all returns were filed and admitted taxes were paid. The petitioner claimed deduction for Rs.53,53, 23, 810/- as exempted under Section 6(2) of the Central Sales Tax Act. It is contended by the petitioner that even in the assessment order it is stated that assessment took place in another State and therefore, Sales Tax Authorities of Bihar State has no jurisdiction to assess the goods in question. It is also pointed out that no proceedings under the Value Added Tax Act was initiated and their sales are covered under valid C-forms and even if Central Sales Tax is leviable it is only @ 4% and not at 8.5% as assessed. We are of the view that where there is efficacious alternative remedy provided under the Central Sales Tax Act itself and the petitioner should have filed statutory appeals against the said assessment. The Hon’ble Supreme Court as early as in 1954 in the case of K.S. Rashid & Sons Vrs. Income Tax Investigation Commission (AIR 1954 SC 207) held that when alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere a petition under Article 226. It is also submitted by the learned 3 counsel for the petitioner that if there is total lack of jurisdiction the petitioner can avail the remedy under Article 226 of the Constitution. It is also submitted that to file an appeal the petitioner may have to pay 25% of the demand and the petitioner would be put to irreparable hardship. We are of the opinion that the demand is under Central Sales Tax Act, and even the alternative prayer of the petitioner is accepted, the rate of tax leviable is less than as assessed by the Authority, it cannot be stated that there is total lack of jurisdiction unless the documents are produced. The Hon’ble Supreme Court in Titagarh Paper Mills Co. Ltd. and Anr. Vrs. The State of Orissa and another ( A.I.R. 1983 SC 603) has held that in Sales Tax Act, petitioner has the efficacious remedy by way of appeal and second appeal and in the event of failure to get relief in departmental appeals or tribunal, again they can approach the High Court. Therefore, in Sales Tax Act writ petitions are not maintainable against the appeal order as there is efficacious alternate remedy when the Act provides for complete machinery to challenge the assessment order passed. However, whether there is jurisdiction on the assessment authority to assess the tax, what 4 is the nature of transaction, what is the rate of taxes etc., can be decided only after perusing the records and finding of fact on this disputed question has to be done by the statutory appellate Authority. Under these circumstances, we dismiss this appeal without passing any orders on the merit, giving an opportunity to the petitioner to avail alternative remedy of statutory appeal. The writ petition is dismissed accordingly without payment of cost. (J.B. Koshy, CJ.) (Shyam Kishore Sharma, J.) AAhmad "