THE STATE OF MADHYA PRADESH AND ANOTHERversusM/S COMMERCIAL ENGINEERS AND BODY BUILDING COMPANY LIMITED

                        [2022] 14 S.C.R. 985                              985


     THE STATE OF MADHYA PRADESH AND ANOTHER                              A
                                  v.
   M/S COMMERCIAL ENGINEERS AND BODY BUILDING
                COMPANY LIMITED
                   (Civil Appeal No.7170 of 2022)
                                                                          B
                        OCTOBER 14, 2022
         [M. R. SHAH AND KRISHNA MURARI, JJ.]
      Constitution of India: Art.226 – Writ jurisdiction in tax matters
– Writ petition filed challenging order of asssessing officer denying
input rebate under s.14 of MP VAT Act, 2002 – Entertainability of –       C
Held: High Court ought not to entertain the writ petition under
Art.226 challenging the assessment order denying the Input rebate
against which a statutory appeal would be available under s.46(1)
of the MP VAT Act, 2002 – Alternative efficacious remedy.
      Allowing the appeal, the Court                                      D
      HELD: While entertaining the writ petition under Article
226 of the Constitution of India challenging the Assessment Order
denying the Input rebate, the High Court has observed that there
are no disputed question of facts arise and it is a question to be
decided on admitted facts for which no dispute or enquiry into            E
factual aspects of the matter is called for. The aforesaid can hardly
be a good/valid ground to entertain the writ petition under Article
226 of the Constitution of India challenging the Assessment Order
denying the Input rebate against which a statutory remedy of
appeal was available. The original writ petitioner is to be relegated
to prefer an appeal against the Assessment Order passed by the            F
Divisional Deputy Commissioner, Commercial Tax, Jabalpur,
which may be available under Section 46(1) of the MP VAT Act,
2002. [Paras 5, 7][987-E-F; 991-F]
      The State of Maharashtra and Others v. Greatship
      (India) Limited [2022] 13 SCALE 770; United Bank                    G
      of India v. Satyawati Tondon and Others (2010) 8 SCC
      110 : [2010] 9 SCR 1 – relied on.
                       Case Law Reference
[2010] 9 SCR 1                  relied on                Para 6
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                                 985
986             SUPREME COURT REPORTS                         [2022] 14 S.C.R.


A           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7170
      of 2022.
            From the Judgment and Orders dated 05.08.2015 of the High
      Court of Madhya Pradesh, Principal Seat at Jabalpur in W.P. No. 7628
      of 2015.
B           Saurabh Mishra, AAG, Sunny Choudhary, Abhinav Shrivastava,
      Advs. for the Appellants.
            Amar Dave, Akshay Sapre, Abhijeet Swaroop, Vinam Gupta,
      Advs. for the Respondent.

C           The Judgment of the Court was delivered by
            M. R. SHAH, J.
            1. Feeling aggrieved and dissatisfied with the impugned judgment
      and order dated 05.08.2015 passed by the High Court of Madhya Pradesh,
      Principal Seat at Jabalpur in Writ Petition No. 7628/2015, by which the
D     Division Bench of the High Court has entertained the writ petition under
      Article 226 of the Constitution of India and has quashed and set aside
      the Assessment Order passed by the Divisional Deputy Commissioner,
      Commercial Tax, Jabalpur, the State of Madhya Pradesh has preferred
      the present appeal.
E            2. By an Assessment Order dated 28.02.2015, the Assessing
      Officer denied the Input rebate under Section 14 of the Madhya Pradesh
      Value Added Tax Act, 2002 (hereinafter referred to as the ‘MP VAT
      Act, 2002’) to the respondent. Without preferring an appeal against the
      Assessment Order denying the Input rebate under Section 46(1) of the
      MP VAT Act, 2002, the respondent preferred the writ petition before the
F
      High Court. Despite the specific objection raised on behalf of the State
      not to entertain the writ petition against the Assessment Order denying
      the Input rebate in view of the availability of the statutory remedy of
      appeal under Section 46(1) of the MP VAT Act, 2002, the High Court
      entertained the writ petition by observing that there are no disputed
G     questions of facts involved in the matter and it is a question to be decided
      on admitted facts for which no dispute or enquiry into factual aspects of
      the matter is called for. That thereafter by the impugned judgment and
      order, the High Court has set aside the Assessment Order denying the
      Input rebate and consequently has allowed the Input rebate in favour of
      the respondent – assessee – original writ petitioner. The impugned
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 THE STATE OF MADHYA PRADESH v. M/S COMMERCIAL ENGINEERS                      987
       AND BODY BUILDING COMPANY LTD. [M. R. SHAH, J.]


judgment and order passed by the High Court is the subject matter of          A
present appeal.
       3. Number of submissions have been made by the learned counsel
appearing on behalf of the respective parties on merits including the
entertainability of the writ petition by the High Court under Article 226
of the Constitution of India challenging the Assessment Order denying         B
the Input rebate. However, for the reasons stated hereinbelow, we
propose to dismiss the writ petition preferred before the High Court and
relegate the respondent – assessee – original writ petition to prefer a
statutory appeal against the Assessment Order, we are not considering
any other submission on merits on whether the High Court is justified in
allowing the Input rebate or not.                                             C

       4. Having heard learned counsel for the respective parties at length
on the entertainability of the writ petition under Article 226 of the
Constitution of India by the High Court against the Assessment Order
and the reasoning given by the High Court while entertaining the writ
petition against the Assessment Order despite the statutory remedy by         D
way of an appeal available, we are of the opinion that the High Court
ought not to have entertained the writ petition under Article 226 of the
Constitution of India challenging the Assessment Order denying the Input
rebate against which a statutory appeal would be available under Section
46(1) of the MP VAT Act, 2002.                                                E
       5. While entertaining the writ petition under Article 226 of the
Constitution of India challenging the Assessment Order denying the Input
rebate, the High Court has observed that there are no disputed question
of facts arise and it is a question to be decided on admitted facts for
which no dispute or enquiry into factual aspects of the matter is called      F
for. The aforesaid can hardly be a good/valid ground to entertain the
writ petition under Article 226 of the Constitution of India challenging
the Assessment Order denying the Input rebate against which a statutory
remedy of appeal was available.
       6. At this stage, a recent decision of this Court in the case of The   G
State of Maharashtra and Others v. Greatship (India) Limited (Civil
Appeal No. 4956 of 2022, decided on 20.09.2022) is required to be
referred to. After taking into consideration the earlier decision of this
Court in the case of United Bank of India v. Satyawati Tondon and
others, reported in (2010) 8 SCC 110, it is observed and held that in a
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988            SUPREME COURT REPORTS                           [2022] 14 S.C.R.


A     tax matter when a statutory remedy of appeal is available, the High
      Court ought not to have entertained the writ petition under Article 226 of
      the Constitution of India against the Assessment Order by-passing the
      statutory remedy of appeal. While holding so, this Court considered the
      observations made by this Court in paragraphs 49 to 53 in Satyawati
      Tondon (supra), which read as under:
B
            “49. The views expressed in Titaghur Paper Mills Co.
            Ltd. vs. State of Orissa (1983) 2 SCC 433 were echoed
            in CCE v. Dunlop India Ltd. (1985) 1 SCC 260 in the following
            words: (SCC p. 264, para 3)
C               “3. … Article 226 is not meant to short-circuit or circumvent
                statutory procedures. It is only where statutory remedies are
                entirely ill-suited to meet the demands of extraordinary
                situations, as for instance where the very vires of the statute is
                in question or where private or public wrongs are so inextricably
                mixed up and the prevention of public injury and the vindication
D               of public justice require it that recourse may be had to Article
                226 of the Constitution. But then the Court must have good
                and sufficient reason to bypass the alternative remedy provided
                by statute. Surely matters involving the revenue where statutory
                remedies are available are not such matters. We can also take
E               judicial notice of the fact that the vast majority of the petitions
                under Article 226 of the Constitution are filed solely for the
                purpose of obtaining interim orders and thereafter prolong the
                proceedings by one device or the other. The practice certainly
                needs to be strongly discouraged.”

F           50. In Punjab National Bank v. O.C. Krishnan (2001) 6 SCC
            569 this Court considered the question whether a petition under
            Article 227 of the Constitution was maintainable against an order
            passed by the Tribunal under Section 19 of the DRT Act and
            observed: (SCC p. 570, paras 5-6)

G               “5. In our opinion, the order which was passed by the Tribunal
                directing sale of mortgaged property was appealable under
                Section 20 of the Recovery of Debts Due to Banks and
                Financial Institutions Act, 1993 (for short ‘the Act’). The High
                Court ought not to have exercised its jurisdiction under Article
                227 in view of the provision for alternative remedy contained
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THE STATE OF MADHYA PRADESH v. M/S COMMERCIAL ENGINEERS                    989
      AND BODY BUILDING COMPANY LTD. [M. R. SHAH, J.]


       in the Act. We do not propose to go into the correctness of the     A
       decision of the High Court and whether the order passed by
       the Tribunal was correct or not has to be decided before an
       appropriate forum.
       6. The Act has been enacted with a view to provide a special
       procedure for recovery of debts due to the banks and the            B
       financial institutions. There is a hierarchy of appeal provided
       in the Act, namely, filing of an appeal under Section 20 and this
       fast-track procedure cannot be allowed to be derailed either
       by taking recourse to proceedings under Articles 226 and 227
       of the Constitution or by filing a civil suit, which is expressly
       barred. Even though a provision under an Act cannot expressly       C
       oust the jurisdiction of the Court under Articles 226 and 227 of
       the Constitution, nevertheless, when there is an alternative
       remedy available, judicial prudence demands that the Court
       refrains from exercising its jurisdiction under the said
       constitutional provisions. This was a case where the High Court     D
       should not have entertained the petition under Article 227 of
       the Constitution and should have directed the respondent to
       take recourse to the appeal mechanism provided by the Act.”
    51. In CCT v. Indian Explosives Ltd. [(2008) 3 SCC 688] the
    Court reversed an order passed by the Division Bench of the            E
    Orissa High Court quashing the show-cause notice issued to the
    respondent under the Orissa Sales Tax Act by observing that the
    High Court had completely ignored the parameters laid down by
    this Court in a large number of cases relating to exhaustion of
    alternative remedy.
                                                                           F
    52. In City and Industrial Development Corpn. v. Dosu
    Aardeshir Bhiwandiwala [(2009) 1 SCC 168] the Court
    highlighted the parameters which are required to be kept in view
    by the High Court while exercising jurisdiction under Article 226
    of the Constitution. Paras 29 and 30 of that judgment which contain
    the views of this Court read as under: (SCC pp. 175-76)                G
       “29. In our opinion, the High Court while exercising its
       extraordinary jurisdiction under Article 226 of the Constitution
       is duty-bound to take all the relevant facts and circumstances
       into consideration and decide for itself even in the absence of
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990      SUPREME COURT REPORTS                          [2022] 14 S.C.R.


A        proper affidavits from the State and its instrumentalities as to
         whether any case at all is made out requiring its interference
         on the basis of the material made available on record. There is
         nothing like issuing an ex parte writ of mandamus, order or
         direction in a public law remedy. Further, while considering the
         validity of impugned action or inaction the Court will not consider
B
         itself restricted to the pleadings of the State but would be free
         to satisfy itself whether any case as such is made out by a
         person invoking its extraordinary jurisdiction under Article 226
         of the Constitution.
         30. The Court while exercising its jurisdiction under Article
C        226 is duty-bound to consider whether:
         (a) adjudication of writ petition involves any complex and
         disputed questions of facts and whether they can be
         satisfactorily resolved;

D        (b) the petition reveals all material facts;
         (c) the petitioner has any alternative or effective remedy for
         the resolution of the dispute;
         (d) person invoking the jurisdiction is guilty of unexplained delay
         and laches;
E
         (e) ex facie barred by any laws of limitation;
         (f) grant of relief is against public policy or barred by any valid
         law; and host of other factors.
      The Court in appropriate cases in its discretion may direct the
F     State or its instrumentalities as the case may be to file proper
      affidavits placing all the relevant facts truly and accurately for
      the consideration of the Court and particularly in cases where
      public revenue and public interest are involved. Such directions
      are always required to be complied with by the State. No relief
      could be granted in a public law remedy as a matter of course
G     only on the ground that the State did not file its counter-affidavit
      opposing the writ petition. Further, empty and self-defeating
      affidavits or statements of Government spokesmen by themselves
      do not form basis to grant any relief to a person in a public law
      remedy to which he is not otherwise entitled to in law.”
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 THE STATE OF MADHYA PRADESH v. M/S COMMERCIAL ENGINEERS                        991
       AND BODY BUILDING COMPANY LTD. [M. R. SHAH, J.]


      53. In Raj Kumar Shivhare v. Directorate of Enforcement                   A
      [(2010) 4 SCC 772] the Court was dealing with the issue whether
      the alternative statutory remedy available under the Foreign
      Exchange Management Act, 1999 can be bypassed and jurisdiction
      under Article 226 of the Constitution could be invoked. After
      examining the scheme of the Act, the Court observed: (SCC p.
                                                                                B
      781, paras 31-32)
          “31. When a statutory forum is created by law for redressal
          of grievance and that too in a fiscal statute, a writ petition
          should not be entertained ignoring the statutory dispensation.
          In this case the High Court is a statutory forum of appeal on a
          question of law. That should not be abdicated and given a go-         C
          by by a litigant for invoking the forum of judicial review of the
          High Court under writ jurisdiction. The High Court, with great
          respect, fell into a manifest error by not appreciating this aspect
          of the matter. It has however dismissed the writ petition on the
          ground of lack of territorial jurisdiction.                           D
          32. No reason could be assigned by the appellant’s counsel to
          demonstrate why the appellate jurisdiction of the High Court
          under Section 35 of FEMA does not provide an efficacious
          remedy. In fact there could hardly be any reason since the
          High Court itself is the appellate forum.”                            E
       7. In view of the above, the impugned judgment and order passed
by the High Court entertaining the writ petition under Article 226 of the
Constitution of India against the Assessment Order denying the benefit
of Input rebate is unsustainable and the same deserves to be quashed
and set aside and the original writ petitioner is to be relegated to prefer     F
an appeal against the Assessment Order dated 28.02.2015 passed by
the Divisional Deputy Commissioner, Commercial Tax, Jabalpur, which
may be available under Section 46(1) of the MP VAT Act, 2002.
       8. In view of the above and for the reasons stated above and
without expressing anything on merits in favour of either of the parties        G
on the Input rebate claimed by the respondent – original writ petitioner,
the impugned judgment and order passed by the High Court is hereby
quashed and set aside. The writ petition preferred by the respondent
herein – original writ petitioner – assessee is hereby dismissed on the
ground of alternative efficacious statutory remedy of appeal available to
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992              SUPREME COURT REPORTS                         [2022] 14 S.C.R.


A     the respondent. The respondent is relegated to prefer an appeal before
      the appellate authority under Section 46(1) of the MP VAT Act, 2002. If
      such an appeal is preferred within a period of four weeks from today,
      the same be entertained and decided and disposed of on merits without
      raising an issue with respect to limitation, however, subject to compliance
      of the statutory requirements, if any, for preferring an appeal under Section
B
      46(1) of the MP VAT Act, 2002. The appellate authority to decide and
      dispose of the appeal and the issue without in any way being influenced
      by any of the observations made by the High Court which as such is
      hereby quashed and set aside by the present judgment and order.
             9. The present appeal is allowed to the aforesaid extent. However,
C     there shall be no order as to costs.

      Devika Gujral                                                  Appeal allowed.



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