THE STATE OF MAHARASHTRA AND OTHERSversusGREATSHIP (INDIA) LIMITED

840                      [2022]REPORTS
               SUPREME COURT    4 S.C.R. 840                [2022] 4 S.C.R.


A             THE STATE OF MAHARASHTRA AND OTHERS
                                        v.
                        GREATSHIP (INDIA) LIMITED
                         (Civil Appeal No. 4956 of 2022)
B
                             SEPTEMBER 20, 2022
               [M. R. SHAH AND B. V. NAGARATHNA, JJ.]
             Alternate Remedy – Availability of – Constitution of India –
      Art.226 – Writ petition under, entertainability of – Maharashtra
C     Value Added Tax Act, 2002 – s.23 – Central Sales Tax Act, 1956 –
      Assessment order passed by the assessing authority determining the
      tax liability along with interest and penalty under the aforesaid Acts
      – Respondent-assessee filed writ petition challenging the assessment
      order inter alia on the ground of limitation – High Court set aside
D     the assessment order and the demand notice – On appeal, held:
      The statutes provide for the right of appeal against the assessment
      order passed by the Assessing Officer and against the order passed
      by the first appellate authority, an appeal/revision before the
      Tribunal – Thus, when there is an alternate/statutory remedy
E     available, judicial prudence demands that the court refrains from
      exercising its jurisdiction under constitutional provision – High Court
      seriously erred in entertaining the writ petition u/Art. 226 against
      the assessment order, bypassing the statutory remedies – It ought to
      have relegated the respondent to avail the statutory remedy of appeal
      and thereafter to avail other remedies provided under the statute –
F
      No valid reasons shown by respondent to by-pass the statutory
      remedy of appeal – Further, on facts there are serious disputes as
      to whether the assessment order was passed on 20.03.20 or 14.07.20
      (as alleged by the assessee) – Impugned judgment set aside – Writ
      petition filed before High Court is dismissed – Respondent relegated
G
      to avail the statutory remedy of appeal and other remedies available
      under the MVAT Act and CST Act.

            United Bank of India v. Satyawati Tondon and others
            (2010) 8 SCC 110 : [2010] 9 SCR 1 – relied on.
H
                                       840
THE STATE OF MAHARASHTRA AND OTHERS v. GREATSHIP                       841
                 (INDIA) LIMITED

      Titaghur Paper Mills Co. Ltd. v. State of Orissa (1983)          A
      2 SCC 433 : [1983] 2 SCR 743; Punjab National Bank
      v. O.C. Krishnan (2001) 6 SCC 569 : [2001] 1 Suppl.
      SCR 466; Raj Kumar Shivhare v. Directorate of
      Enforcement (2010) 4 SCC 772 : [2010] 4 SCR 608;
      M/s Filterco & Another v. Commissioner of Sales Tax,             B
      Madhya Pradesh and Another (1986) 2 SCC 103 :
      [1986] 1 SCR 239; Assistant Commissioner (CT) LTU
      & Another v. Amara Raja Batteries Limited (2009) 8
      SCC 209 : [2009] 11 SCR 953; Whirlpool Corporation
      v. Registrar of Trademarks, Mumbai (1998) 8 SCC 1 :              C
      [1998] 2 Suppl. SCR 359 – referred to.

                      Case Law Reference

[1983] 2 SCR 743                  referred to            Para 4.2

[2001] 1 Suppl. SCR 466           referred to           Para 4.2       D

[2010] 4 SCR 608                  referred to            Para 4.2

[2010] 9 SCR 1                    relied on             Para 4.2

[1986] 1 SCR 239                  referred to            Para 5.1      E
[2009] 11 SCR 953                 referred to            Para 5.1

[1998] 2 Suppl. SCR 359           referred to           Para 5.1

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4956
                                                                       F
of 2022.

      From the Judgment and Order dated 30.04.2021 of the High Court
of Judicature at Bombay in Writ Petition (Stamp) No. 92630 of 2020.

     Sachin Patil, Rahul Chitnis, Aaditya A. Pande, Geo Joseph,
                                                                       G
Ms. Shwetal Shepal, Advs. for the Appellants.

      Rafique Dada, Sr. Adv., Ajay Bhargava, Mrs. Vanita Bhargava,
Sudipta Bhattacharjee, Omkar Sharma, Ariyadeep Roy, Ms. Trishala
Trivedi, M/s Khaitan & Co., Advs. for the Respondent.
                                                                       H
842             SUPREME COURT REPORTS                           [2022] 4 S.C.R.


A           The Judgment of the Court was delivered by
            M. R. SHAH, J.
             1. Feeling aggrieved and dissatisfied with the impugned judgment
      and order dated 30.04.2021 passed by the High Court of Judicature at
      Bombay in Writ Petition (Stamp) No. 92630 of 2020, by which the High
B
      Court has, in exercise of powers under Article 226 of the Constitution of
      India, set aside the assessment order passed by the assessing authority
      and also the belated notice of demand, the State of Maharashtra and
      others have preferred the present appeal.
             2. That the respondent – original writ petitioner was subjected to
C     proceedings under the Maharashtra Value Added Tax, 2002 (hereinafter
      referred to as the ‘MVAT Act’) and Central Sales Tax Act, 1956
      (hereinafter referred to as the ‘CST Act’). The Assessing Officer issued
      notice of assessment dated 01.02.2018 calling upon the assessee to
      produce relevant documents and also to show cause as to why it should
D     not be assessed under the relevant provisions of Section 23 of the MVAT
      Act.
             2.1 According to the writ petitioner, the writ petitioner submitted
      the required documents and also showed cause vide letter dated
      03.05.2018. That a personal hearing was fixed on 16.03.2020. However,
E     on 16.03.2020 the Assessing Officer was not available and therefore no
      hearing took place. According to the writ petitioner, multiple telephone
      calls were made to the Assessing Officer on 17.03.2020, 18.03.2020
      and 19.03.2020 for personal hearing, but no such hearing materialised.
      According to the writ petitioner, vide letter dated 20.03.2020 it was
      submitted before the Assessing Officer that for the financial year under
F     consideration the relevant documents had already been submitted and
      personal hearing was requested. The Assessing Officer passed an order
      on 20.03.2020 determining the tax liability along with interest and penalty
      under the MVAT Act and CST Act.
             2.2 That without preferring any appeal before the first appellate
G     authority, the respondent – assessee – original writ petitioner filed a writ
      petition before the High Court challenging the assessment order passed
      under the provisions of the MVAT Act and CST Act alleging inter alia
      that no order was passed on 20.03.2020 and it was passed in the month
      of July, 2020, which was beyond the period of limitation. The High Court
H     has entertained the said writ petition against the assessment order under
THE STATE OF MAHARASHTRA AND OTHERS v. GREATSHIP                             843
           (INDIA) LIMITED [M. R. SHAH, J.]

Article 226 of the Constitution of India and has passed the impugned         A
judgment and order quashing and setting aside the assessment order and
the demand notice.
      2.3 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court, the State of Maharashtra and others
have preferred the present appeal.                                           B
      3. Number of submissions have been made by the counsel
appearing for the respective parties on merits and on the assessment
order passed by the Assessing Officer. However, for the reasons given
hereinbelow, we are of the opinion that against the assessment order,
the High Court ought not to have entertained the writ petition and ought     C
to have relegated the assessee to prefer a first appeal before the first
appellate authority. Therefore, we are not elaborating the submissions
on merits.
       4. Shri Sachin Patil, learned counsel appearing on behalf of the
appellants has vehemently submitted that against the assessment order        D
passed by the Assessing Officer under the provisions of the MVAT Act
and CST Act, the High Court ought not to have entertained the writ
petition under Article 226 of the Constitution of India.
       4.1 It is next submitted by the learned counsel appearing on behalf
of the appellants that the assessee had a statutory alternative remedy       E
available by way of appeal before the first appellate authority and the
said remedy ought to have been pursued, more so because, there were
very serious disputed facts as to whether the assessment order was
passed on 20.03.2020 or on 14.07.2020 (as alleged by the assessee).
       4.2 Making the above submissions and relying upon the decisions       F
of this Court in the case of Titaghur Paper Mills Co. Ltd. v. State of
Orissa (1983) 2 SCC 433; Punjab National Bank v. O.C. Krishnan
(2001) 6 SCC 569; Raj Kumar Shivhare v. Directorate of
Enforcement (2010) 4 SCC 772; and United Bank of India v.
Satyawati Tondon and others (2010) 8 SCC 110, it is prayed to allow
the present appeal.                                                          G
       5. Shri Rafique Dada, learned Senior Advocate appearing on behalf
of the respondent has submitted that considering the material on record,
the High Court has observed that the assessment order was not passed
on 20.03.2020 and must have been passed subsequently, i.e., beyond
31.03.2020 and therefore as the assessment order was passed beyond           H
844             SUPREME COURT REPORTS                              [2022] 4 S.C.R.


A     the period of limitation prescribed under the Act, the High Court was
      justified in entertaining the writ petition and quashing and setting aside
      the assessment order.
              5.1 Shri Rafique Dada, learned Senior Advocate appearing on
      behalf of the respondent – assessee has relied upon the following decisions
B     of this Court in support of his submission that the High Court has rightly
      entertained the writ petition against the order of assessment,
             1. M/s Filterco & Another v. Commissioner of Sales Tax,
                Madhya Pradesh and Another, (1986) 2 SCC 103;
             2. Assistant Commissioner (CT) LTU & Another v. Amara
C               Raja Batteries Limited, (2009) 8 SCC 209; and
             3. Whirlpool Corporation v. Registrar of Trademarks,
                Mumbai, (1998) 8 SCC 1
             5.2 Learned Senior Advocate appearing on behalf of the original
D     writ petitioner has further submitted that in the present case for an earlier
      assessment order, there was a decision against the assessee by the first
      appellate authority on merits and therefore it may be a formality to prefer
      an appeal before the first appellate authority and hence the original writ
      petitioner rightly filed the writ petition before the High Court.
             6. We have heard the learned counsel for the respective parties
E
      at length.
             At the outset, it is required to be noted that against the assessment
      order passed by the Assessing Officer under the provisions of the MVAT
      Act and CST Act, the assessee straightway preferred writ petition under
      Article 226 of the Constitution of India. It is not in dispute that the statutes
F
      provide for the right of appeal against the assessment order passed by
      the Assessing Officer and against the order passed by the first appellate
      authority, an appeal/revision before the Tribunal. In that view of the
      matter, the High Court ought not to have entertained the writ petition
      under Article 226 of the Constitution of India challenging the assessment
G     order in view of the availability of statutory remedy under the Act. At
      this stage, the decision of this Court in the case of Satyawati Tondon
      (supra) in which this Court had an occasion to consider the entertainability
      of a writ petition under Article 226 of the Constitution of India by by-
      passing the statutory remedies, is required to be referred to. After
      considering the earlier decisions of this Court, in paragraphs 49 to 52, it
H     was observed and held as under:
THE STATE OF MAHARASHTRA AND OTHERS v. GREATSHIP                             845
           (INDIA) LIMITED [M. R. SHAH, J.]

    “49. The views expressed in Titaghur Paper Mills Co.                     A
    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)
       “3. … Article 226 is not meant to short-circuit or circumvent
       statutory procedures. It is only where statutory remedies are         B
       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
       of public justice require it that recourse may be had to Article
       226 of the Constitution. But then the Court must have good            C
       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
       judicial notice of the fact that the vast majority of the petitions
       under Article 226 of the Constitution are filed solely for the        D
       purpose of obtaining interim orders and thereafter prolong the
       proceedings by one device or the other. The practice certainly
       needs to be strongly discouraged.”
    50. In Punjab National Bank v. O.C. Krishnan (2001) 6 SCC
    569 this Court considered the question whether a petition under          E
    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)
       “5. In our opinion, the order which was passed by the Tribunal
       directing sale of mortgaged property was appealable under             F
       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
       in the Act. We do not propose to go into the correctness of the
       decision of the High Court and whether the order passed by            G
       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
                                                                             H
846      SUPREME COURT REPORTS                           [2022] 4 S.C.R.


A        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
B
         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
C        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
D     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.
E     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)
F
         “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
         proper affidavits from the State and its instrumentalities as to
G        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
H        itself restricted to the pleadings of the State but would be free
THE STATE OF MAHARASHTRA AND OTHERS v. GREATSHIP                             847
           (INDIA) LIMITED [M. R. SHAH, J.]

       to satisfy itself whether any case as such is made out by a           A
       person invoking its extraordinary jurisdiction under Article 226
       of the Constitution.
       30. The Court while exercising its jurisdiction under Article
       226 is duty-bound to consider whether:
       (a) adjudication of writ petition involves any complex and            B
       disputed questions of facts and whether they can be
       satisfactorily resolved;
       (b) the petition reveals all material facts;
       (c) the petitioner has any alternative or effective remedy for        C
       the resolution of the dispute;
       (d) person invoking the jurisdiction is guilty of unexplained delay
       and laches;
       (e) ex facie barred by any laws of limitation;
                                                                             D
       (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
    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           E
    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
    only on the ground that the State did not file its counter-affidavit
    opposing the writ petition. Further, empty and self-defeating            F
    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.”
    53.In Raj Kumar Shivhare v. Directorate of Enforcement [(2010)
    4 SCC 772] the Court was dealing with the issue whether the              G
    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. 781, paras
    31-32)
                                                                             H
848             SUPREME COURT REPORTS                            [2022] 4 S.C.R.


A               “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-
                by by a litigant for invoking the forum of judicial review of the
B
                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.
                32. No reason could be assigned by the appellant’s counsel to
C               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.”
             7. Applying the law laid down by this Court in the aforesaid
D     decision, the High Court has seriously erred in entertaining the writ petition
      under Article 226 of the Constitution of India against the assessment
      order, by-passing the statutory remedies.
             8. Now so far as the reliance placed upon the decisions of this
      Court by the learned Senior Advocate appearing on behalf of the
E     respondent, referred to hereinabove, are concerned, the question is not
      about the maintainability of the writ petition under Article 226 of the
      Constitution, but the question is about the entertainability of the writ
      petition against the order of assessment by-passing the statutory remedy
      of appeal. There are serious disputes on facts as to whether the
F     assessment order was passed on 20.03.2020 or 14.07.2020 (as alleged
      by the assessee). No valid reasons have been shown by the assessee to
      by-pass the statutory remedy of appeal. This Court has consistently taken
      the view that when there is an alternate remedy available, judicial prudence
      demands that the court refrains from exercising its jurisdiction under
      constitutional provisions.
G
             9. In view of the above and in the facts and circumstances of the
      case, the High Court has seriously erred in entertaining the writ petition
      against the assessment order. The High Court ought to have relegated
      the writ petitioner – assessee to avail the statutory remedy of appeal
      and thereafter to avail other remedies provided under the statute.
H
THE STATE OF MAHARASHTRA AND OTHERS v. GREATSHIP                                 849
           (INDIA) LIMITED [M. R. SHAH, J.]

        10. Under the circumstances, the impugned judgment and order             A
passed by the High Court is hereby quashed and set aside. The writ
petition filed before the High Court challenging the assessment order
and consequential notice of demand of tax is hereby dismissed. The
respondent – assessee is relegated to avail the statutory remedy of appeal
and other remedies available under the MVAT Act and CST Act. It is
                                                                                 B
directed that if such a remedy is availed within a period of four weeks
from today, the appellate authority shall decide and dispose of the same
on its own merits in accordance with law without raising any question of
limitation, however, subject to fulfilling the other conditions, if any, under
the statute. It is made clear that we have not expressed any opinion on
the merits of the case in favour of either of the parties and it is for the      C
appellate authority and/or appropriate authority to consider the appeal/
proceedings on its/their own merits and without being influenced in any
way by any of the observations made by the High Court which otherwise
have been set aside by the present order. The present appeal is allowed
in the aforesaid terms. However, in the facts and circumstances of the
                                                                                 D
case, there shall be no order as to costs.

Divya Pandey                                                   Appeal allowed.
(Assisted by : Roopanshi Virang, LCRA)


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