Arshad Iqbal Kenu v. State of JK & Ors.

question(s) of law, arising out of the order passed by the Tribunal, to this Court and in case the aforesaid application is not allowed, the remedy is OWP No. 81/2018 IA No. 01/2018 before this Court for a direction to the Tribunal to refer the question(s) of law so raised, to this Court. The aforesaid Section provides for limitation for filing of such an application to the Tribunal.

04. We have heard learned counsel for the parties on the preliminary objection raised by the learned Advocate General on the maintainability of the writ petition and perused the paper-book.

05. Relevant provisions of Section 12-D of the Act are reproduced hereunder: “12-D. Statement of case to the High Court.- Within sixty days from the date of communication of the order of the Tribunal, passed in appeal being an order which affects the liability of any person to pay tax or penalty or interest or to forfeiture or any sum or which effects the recovery from any person of any amount under Section 12- A that person or the Commissioner, Sales Tax having jurisdiction over the whole of the State may by application in writing (accompanied where the application is made by that person by a fee of five hundred rupees) require the Tribunal to refer to the High Court any question of law arising out of such order and where the Tribunal agrees, it shall as soon as may be not later than ninety days from the receipt of such application draw up a statement of the case and refer it to the High Court….”

06. Learned appearing counsel for the parties submitted that the issue involved in the present writ petition stands already decided by a Division Bench of this Court in terms of final order passed on 21st October 2019 in writ petition being OWP No. 1414/2012, in terms whereof the writ petition of the petitioner therein, stands dismissed as being not maintainable, with further direction to exclude the period spent by the petitioner before this Court for the purposes of calculating the period of limitation before the OWP No. 81/2018 IA No. 01/2018 Tribunal and directed the petitioner to file an application before the Tribunal seeking reference of question(s) of law arising out of the order passed by the Tribunal, within three weeks from today. Paragraphs 9 to 25 of the judgment being relevant are take note of: “9. Relevant provisions of Section 12-D of the Act are reproduced hereunder: “12-D. Statement of case to the High Court.- (1) Within sixty days from the date of communication of the order of the Tribunal, passed in appeal being an order which affects the liability of any person to pay tax or penalty or interest or to forfeiture or any sum or which effects the recovery from any person of any amount under Section 12- A that person or the Commissioner, Sales Tax having jurisdiction over the whole of the State may by application in writing (accompanied where the application is made by that person by a fee of five hundred rupees) require the Tribunal to refer to the High Court any question of law arising out of such order and where the Tribunal agrees, it shall as soon as may be not later than ninety days from the receipt of such application draw up a statement of the case and refer it to the High Court: Provided that the Tribunal may, if it is satisfied that the dealer or the Commissioner was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period not exceeding thirty days: Provided further that, if in exercise of its power under this sub-section, the Tribunal refuses to state the case which it has been required to do, on the ground that no question of law arises that person or the Commissioner may within ninety days of such refusal, either withdraw his application and if he does so any fee paid shall be refunded, or apply to the High Court against such refusal. (2) If upon receipt of an application under sub- section (1) the High Court is not satisfied as to the OWP No. 81/2018 IA No. 01/2018 correctness of the decision of the Tribunal, it may require the Tribunal to state the case and refer it, and accordingly on receipt of any such requisition the Tribunal shall state the case and refer to the High Court. (3) If the High Court is not satisfied that the statements in the 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 alternations therein, as the High Court may direct in that behalf. (4) 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 dispose of the case accordingly. Explanation.- For the purpose of this sub-section, certified copy of the judgment of the High Court submitted by the Commissioner to the Tribunal shall be deemed to be the copy of the judgment of the High Court delivered to the Tribunal under the seal of the Court and the signature of the Registrar. (5) The payment of the amount of tax, penalty, interest or sum forfeited if any, due in accordance with the order of the Tribunal in respect of which a application has been made under sub-section (1) shall not be stayed pending the disposal of such application or any reference made in consequence thereof, but if such amount is reduced as the result of such reference, the excess tax, penalty, interest or sum forfeited paid shall be refunded in accordance with the provisions of Section 10-B.”

10. The facts of the case, as are available on record, are that the respondent No.1 is carrying on the business including the business of airing/broadcasting commercial advertisements. The State claimed that the activity carried on by the respondent No.1 was exigible to tax under the provisions of the Act, read with notification bearing SRO 117 of 2007 dated March 30, 2007 and the respondent No.1 had not filed returns. Notices were issued. After affording it opportunity of hearing, assessments for the years 2007-08 and 2008-09 were framed, vide OWP No. 81/2018 IA No. 01/2018 separate orders dated 03.09.2009. Aggrieved against those orders, the respondent No.1 preferred two appeals before the Deputy Commissioner, Commercial Taxes, Appeals (Appellate Authority), Jammu. The 1st Appellate Authority framed the following question for consideration: “Whether the appellant is a service provider covered under SRO 117 dated 30.03.2007 and whether the services so rendered are taxable under J&K GST Act.”

11. Both the appeals filed by the respondent No.1 were dismissed by the Ist Appellate Authority, vide common order dated 01.03.2011.

12. Still aggrieved, the respondent No.1 preferred two appeals before the Tribunal. Vide common order dated 22.02.2012 passed by the Tribunal, both the appeals were allowed and the orders passed by the Assessing as well as Appellate Authority, were set aside.

13. The issue which is required to be considered by this Court at this stage is as to what is the remedy available to the petitioner to impugn the orders passed by the Tribunal. And further, as to whether bypassing that remedy, writ petition can be filed.

14. As per the scheme of the Act, orders of the assessment are passed under Section 7(10) of the Act against which appeal lies to the 1st Appellate Authority under Section 11 of the Act. Section 12 of the Act deals with the appeals to the Tribunal and the remedies available thereafter.

15. A perusal of section 12-D of the Act shows that after the appeal is decided by the Tribunal, any party aggrieved of against the same can file application to the Tribunal seeking reference of question(s) of law arising out of the order of the Tribunal, to this Court for its opinion. The period for filing such an application has been prescribed in Section 12-D(1) as 90 days. The same is extendable further by 30 days.

16. Section 12-D of the Act further provides that in case Tribunal rejects the application seeking reference of question(s) of law arising out of the order of Tribunal to this Court, the aggrieved party can file application before this court seeking a direction to the Tribunal to refer the aforesaid question(s) to this court for its opinion. The petitioner has by- passed that remedy and approached this court by filing the present writ petition on 17.09.2012, in which the respondent No.1 appeared on its own on 10.10.2012. OWP No. 81/2018 IA No. 01/2018

17. The interim orders passed in the writ petition by the learned Single Judge also show that a preliminary objection was raised by the respondent No.1 regarding maintainability of the writ petition. The aforesaid objection was considered by the learned Single Judge vide order dated 02.07.2013. Rejecting the same, the writ petition was admitted.

18. Aggrieved by the aforesaid order of admission passed by the learned Single Judge, the respondent No.1 filed LPAOW No. 73/2013. The same was disposed of on 03.09.2013 by passing the following order: “1. The instant appeal is directed against order dated 02.07.2013 which has been filed by 92.7 FM (Reliance Broadcast Network Ltd.), Jammu. The Writ Court vide interim order which is subject matter of challenge in the instant appeal, has recorded a prima facie satisfaction with regard to the maintainability of the petition and has expressed view prima facie in favour of maintainability which cannot be regarded as final expression of opinion on the controversy. Even otherwise the petition stands admitted.

2. Having heard learned counsel for the appellant, we clarify that the impugned order dated 02.07.2013 shall not be regarded as final expression of opinion on any issue referred in that order. The appellant shall be at liberty to raise all the issues including the issue with regard to the maintainability of the petition.

3. With the aforesaid observation, the appeal is dismissed.”

19. A perusal of the aforesaid order shows that liberty was granted to the respondent No. 1 to raise all the issues including the issue regarding the maintainability of the writ petition. Hence, the contention raised by the learned Advocate General that writ petition having been admitted, the preliminary objection regarding maintainability of the writ petition cannot be considered at this stage is totally misconceived and deserves to be rejected.

20. To put the record straight, it is added that earlier as per Rules and circulars issue by Hon’ble Chief Justice, tax matters used to be listed before Single Judge. That is why initially the writ petition was listed before Single Bench. However, later on with changes made for listing of cases of different categories, the tax matters are listed before Division Bench only. This is how the matter has been listed before Division Bench. OWP No. 81/2018 IA No. 01/2018

21. In our view the preliminary objection raised by learned counsel for the respondent No. 1 is sustainable as the factum of availability of alternative remedy of filing an application before the Tribunal for referring the questions of law arising out of the order of the Tribunal was and is available to the petitioner. Instead of availing that remedy the State filed the present petition in this Court. Though the argument raised by learned counsel for the respondent No 1 was that it was to cover up delay as the period for filing application before the Tribunal had expired, however, we are not going into that argument. But the fact is not denied that there was and is a remedy available, subject to the conditions attached.

22. The argument that the writ petition has been filed because a legal issue is involved in the writ petition, also deserves to be noticed and rejected. This is for the reason that even an application before the Tribunal is maintainable for referring only questions of law arising out of the orders of the Tribunal, to this Court. In that eventuality also the matter will come to this court only for adjudication on the referred issues and not to any other authority.

23. The instant petition is not a writ petition filed by an assessee, where additional prayer for stay of recovery of tax has been made. Even that may have to be considered keeping in the provisions of the Act.

24. The argument that the alternative remedy may not be effective also deserves to be rejected for the reason that even the question of law sought to be raised by the petitioner, as arising from the order of the Tribunal, have also to be answered by this Court.

25. Rule 2(d) of the Jammu and Kashmir Writ Proceedings Rules, 1997 provides that a specific statement has to be made regarding the non- availability of an alternative remedy against the impugned action and as to whether the same has been availed of or not. In the case in hand, in the writ petition, nothing has been stated regarding availability of alternative remedy available to the petitioner against the orders impugned in the writ petition. A writ petition filed without complying with the mandatory requirements as provided for in the Jammu and Kashmir Writ Proceedings Rules, 1997 has to be dismissed. No doubt, not without affording opportunity to the party concerned to meet with the objection.” OWP No. 81/2018 IA No. 01/2018

07. For the reasons mentioned above, in our view the preliminary objection raised by the learned Advocate General, has to be sustained and the writ petition deserves to be dismissed on the ground of availability of an effective alternative remedy against the order impugned in the writ petition. However, we find merit in the argument raised by Mr. Z. A. Qureshi, learned senior counsel representing the petitioner on the issue that the period spent by the petitioner before this court be excluded for the purpose of calculation of limitation for filing the appropriate application before the Tribunal. Hence, it is directed that, in case the petitioner files the application(s) before the Tribunal seeking reference of question(s) of law arising out of the order passed by the Tribunal within 3 weeks from today, the period spent by the petitioner before this court in the present proceedings, shall be excluded, while calculating the period of limitation for the same. It is made clear that we have not expressed any opinion on the merits of the questions raised in the present writ petition and the Tribunal shall proceed in the matter uninfluenced by any observations made herein. It is also made clear that in the event the application is not filed within the time so granted, same shall be at the risk and responsibility of the petitioner.

08. The writ petition is disposed of in the above terms. (Wasim Sadiq Nargal) (Ali Mohammad Magrey) Judge Judge SRINAGAR: 03.06.2022 “Hamid” i. Whether the judgment is reportable? ii. Whether the judgment is speaking? Yes/ No. Yes/ No. ABDUL HAMID BHAT 2022.06.03 16:51 I attest to the accuracy and integrity of this document