Vijay Lakshmi Khattar & Ors. v. State of J&K & Ors.

The impugned order and notice are challenged on varied grounds with particular reference that the petitioners were not at all heard by the Assessing Authority, while assessing the Tax for the aforesaid period, which violates the right of the petitioners guaranteed under Constitution and Law. It is submitted that the property for which the Assessing Authority had made liable the petitioners for tax is Trust property, which property is relinquished by the owner to Trust vide relinquishment deed, executed on 20th Day of November, 1998. It is further submitted that the property is used for Medical Centre for the poor and marginal classes. Learned counsel appearing for the petitioners submits that in terms of Clause (d) of Section 10 of the J&K Urban Immoveable Property Tax Act, 1962 ( for short “ the Act”), (now repealed), the property held in Trust wholly for charitable or religious purposes is exempted from Tax, therefore, the order of assessment passed and subsequent orders of penalty and recovery are without jurisdiction. It is further contended that the remedy of appeal is an alternate and efficacious remedy, which does not bar the jurisdiction of this Court in the writ petition under Article 226 of the Constitution of India, which has extraordinary jurisdiction. Learned counsel further submits that in order to appreciate the application of law and the jurisdictional aspect, coupled with the exemption under clause 1 of Section 4, this Court has jurisdiction to entertain the writ petition and pass appropriate orders. On notice respondents have raised preliminary objections regarding maintainability of the writ petition on the grounds that the petitioners have not availed the efficacious and alternate remedy available to them under the Act. It is further stated that the assessment order has been passed against the petitioners under the provisions of Section 8 of the Act and the Rules. Notwithstanding such preliminary objections, the respondents have also denied the contentions raised in the writ petition that the property taxed for the period is exempted from Tax in terms of application of clause (d) of Section 4 of the Act. It is further averred that it is disputed question, which cannot be gone into by the writ petition filed under Article 226 of the Constitution of India. Mr. D. C. Raina, learned Advocate General, submits that the scheme of law by no stretch of imagination can be made redundant by filing the writ petition, challenging the order passed by the Assessing Authority and subsequent orders of penalty and recovery. Learned Advocate General, has invited the attention of this Court to Section 10 of the Act, which provides for appeal and revision against the order of the Assessing Authority by any person aggrieved within thirty days from the date on which the order is served with the notice of demand. Learned Advocate General further submits that the proviso to Sub Section 1 of Section 10 of the Act, provides that the appeal shall be entertained unless the taxes or penalty which is disputed in appeal have been deposited before filing of the appeal. The further contention of learned Advocate General that in order to avoid deposition of the amount which is provided in the scheme of law, the course of filing the writ petitions is adopted. We reiterate the same in support of the contentions raised. Mr. D. C. Raina, learned Advocate General submits that the Supreme Court, in series of Judgments and the latest passed in case Civil Appeal No. 4956 of 2022, titled The State of Maharashtra and Others. Vs. Greatship (India) Limited decided on 20.09.2022, depreciated entertaining of the writ petitions, when the statutory alternate remedy is available by way of appeal, moreso where the disputed facts about the assessment order regarding period and application are raised. Heard learned counsel appearing for the parties, perused the records and considered the matter. Admittedly, the petitioners feeling aggrieved of the orders passed by the Assessing Authority as detailed out hereinabove, has a remedy of appeal available under Section 10 of the Act, without even making reference to any Judgment passed by this Court or the Supreme Court , there is no scope for this Court on the grounds raised in the writ petition to entertain the writ petition, when admittedly the efficacious alternate remedy of filing the statutory appeal is available and all the grounds taken in the writ petition can well be detailed out in the appeal for better decision as the Appellate Authority can go to the questions disputed or undisputed in the appeal against the assessment order or subsequent orders. The writ petition is filed before this Court on 30th December, 2002 and the writ Court on the very motion hearing while entertaining the writ petition, directed the respondents not to take coercive method of recovery, which order is not modified, vacated or reversed. As per settled position of law disputed questions of fact, cannot be adjudicated in the writ jurisdiction under Article 226 of the Constitution of India. Law on the subject is no more res-integra, as settled by the Hon’ble Apex Court in case reported in (2004) 3 Supreme Court Cases 553 titled ABL International Ltd and Anr. Vs. Export Credit Guarantee Corporation of India Ltd, and Ors. The relevant portion of the Judgment is taken note of:- “ A writ petition involving serious disputed questions of facts which requires consideration of evidence which is not on record, will not normally be entertained by a Court in the exercise of its jurisdiction under Article 226 of the Constitution of India, but there is no absolute rule that in all cases involving disputed questions of fact the parties should be relegated to a civil suit. It has even been held in Gunwant Kaur case, (1969) 3 SCC 796, that in a writ petition, if the facts require, oral evidence can be taken. This clearly shows that in an appropriate case, the writ Court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact. So while recording the finding on the basis of the observations made hereinabove, the petitioners had efficacious alternate remedy of appeal available under law, therefore, have to avail the same. Difficulty expressed by the counsel qua limitation in filing the appeal after a considerable period of about twenty long years, on account of pendency of this writ petition has justification and in order to do complete justice, it has become necessary to observe that the writ petition has been filed under a bonafide belief of the orders being without jurisdiction and amenable to writ jurisdiction, therefore, the period spend before this Court needs to be condoned. In view of above background, this writ petition is declared as not being maintainable against the impugned order and notice; therefore, we dispose of the writ petition by providing liberty to the petitioners to file the appeal before the Commissioner, Commercial Taxes within one month from today. The Appellate Authority shall consider the appeal on merits by treating the period as condoned. Till the appeal is entertained and orders passed, the interim order passed by this Court shall remain in force. Disposed of. (Puneet Gupta) (Ali Mohammad Magrey) Judge Chief Justice JAMMU 10.11.2022 “Mohammad Yasin Dar” Whether the order is speaking? Yes Whether the order is reportable? Yes