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2022 DIGILAW 388 (JK)

Alson Motors through Mubeen Shah v. State of JK

2022-08-16

JAVED IQBAL WANI, PANKAJ MITHAL

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JUDGMENT : PANKAJ MITHAL, J. 1. The petitioner was a Registered Partnership Firm before its dissolution and was probably dealing in Automobiles, Electronics and Pharmaceuticals with its Head Office at Srinagar. 2. The petitioner has invoked the writ jurisdiction of this court for the quashing of the order dated 22nd December, 2008 passed by the respondent No. 2 Commissioner, Commercial Taxes J&K, Government, the consequential order dated 30th March, 2011 passed by the respondent No. 4 Assessing Authority, Commercial Taxes and the Recovery dated 14th November, 2011 to recover the assessed amount of interest and penalty. 3. The petitioner alleges that it had been submitting regular returns till the year, 1990 when on account of eruption of militancy in J&K, threats were issued through publication in the newspapers of the State not to pay any tax to the Government or to suffer serious consequences. In view of the above threats, returns could not be filed in time by large number of persons including the petitioner. 4. The matter of assessment and payment of sales tax in the State of J&K used to be governed by the General Sales Tax Act, 1962 which inter-alia vide Section 25-D empowered the Government to grant immunity from penalty or to reduce or remit interest on arrears of tax admitted by the dealers or assessed by the authorities in public interest. 5. On account of the peculiar situation prevailing in the State of J&K due to militancy, the administrative machinery was virtually defunct and could not collect sale tax dues regularly and at the same times even assesses could not file return and remit the tax resulting in huge accumulated arrears till March, 1997. The Government thus came out with a notification in the form of SRO 244, dated 25.06.1999 which provided for remittance of 100% of interest and penalty in respect of defaulters of tax provided they pay their arrears accrued upto 31st March, 1997 in a maximum period of 30 quarterly installments starting from 1st quarter of the financial year 1999-2000. 6. The scheme provided under the aforesaid SRO for payment of arrears of interest and penalty was commonly known as amnesty scheme. 7. The petitioner applied for the benefit under the said amnesty scheme, but the same was denied to him vide order dated 8th November, 1999. The said order was assailed by the petitioner by means of OWP No. 592/2000. The scheme provided under the aforesaid SRO for payment of arrears of interest and penalty was commonly known as amnesty scheme. 7. The petitioner applied for the benefit under the said amnesty scheme, but the same was denied to him vide order dated 8th November, 1999. The said order was assailed by the petitioner by means of OWP No. 592/2000. The said writ petition was allowed vide judgment and order dated 11th July, 2001 holding that the order impugned dated 8th November, 1999 is not tenable in law and that denial of benefit of the amnesty scheme to the petitioner is not proper. The order was accordingly set-aside with the direction to the appropriate authority to take further action after compliance of the procedure prescribed by Section 7 of the Act within a period of two months. The aforesaid judgment and order of the High Court was challenged before the Supreme Court by means of a Special Leave to Appeal, but the same was dismissed in limini on 9th July, 2002. 8. After the aforesaid decision attained finality, the appropriate authority under the Act proceeded further in the matter and after following the proper procedure vide order dated 27th June, 2003 held that the petitioner is qualified for amnesty under SRO 244 to the extent of tax worked out above and the firm was directed to deposit the deficit/differential amount along-with the installment of interest due in according with the calculation made there-under. The aforesaid order was accepted by the authorities and was not challenged by anyone in any superior forum much-less in appeal under Section 11 of the Act. 9. It so happened that the respondent No. 2, Commissioner, Commercial Taxes in its suo-moto exercise of revisional power on the basis of some audit report after about 5 years passed an order setting-aside the order of the appropriate authority dated 27th June, 2003 and remanded the matter to the Assessing Authority with the direction to proceed afresh and pass an appropriate order as per law. 10. The effect of the aforesaid order was that the petitioner was denied benefit of the amnesty scheme and the matter as to whether the petitioner is entitled to the benefit of said scheme stood reopened. 11. The petitioner is aggrieved by the aforesaid order dated 22nd December, 2008. 10. The effect of the aforesaid order was that the petitioner was denied benefit of the amnesty scheme and the matter as to whether the petitioner is entitled to the benefit of said scheme stood reopened. 11. The petitioner is aggrieved by the aforesaid order dated 22nd December, 2008. Therefore, one of the reliefs claimed in the writ petition is for the quashing of the said order. The other relief claimed in the writ petition is for the quashing of the order dated 30.03.2011 passed by respondent No. 4 Assessing Authority, Commercial Taxes, Srinagar under section 7(15) of the Act and the consequential order of recovery dated 14th November, 2011 of the interest and the penalty upon the arrears of the tax for the period the Valley was in turmoil. 12. We have heard Mr. R.A. Jan, learned senior counsel for the petitioner and Mr. D.C. Raina, learned AG for the respondents. 13. Mr. Jan, learned senior counsel contended that the respondent No. 2 Commissioner, Commercial Taxes acted without jurisdiction in passing the impugned order by treating the order dated 27th June, 2003 passed by the Assessing Authority as a routine assessment order divorced from the amnesty scheme. Secondly, the power of revision could not have been exercised by him after the matter had remained settled for a number of years on account of which substantive rights have accrued to the petitioner. In short, the submission is that the revisional power could not have been exercised after five years. Lastly, he submits that the order of respondent No. 2, Commissioner, Commercial Taxes is violative of the principles of natural justice inasmuch as it has been passed on the basis of some audit report, a copy of which was not made available to the petitioner. 14. Mr. Raina, learned AG takes a preliminary objection regarding the maintainability of the writ petition. He submits that the petitioner has accepted the impugned order of respondent No. 2 Commissioner, Commercial Taxes as it participated in the proceedings before the Assessing Authority upon remand. The petitioner having acquiescenced to the jurisdiction of the Assessing Authority pursuant to the impugned order of the Commissioner, Commercial Taxes cannot approbate and reprobate at the same time. Since in pursuance thereof, an assessment order has already been passed, the petitioner has a statutory remedy of appeal and he cannot be permitted to avail the writ jurisdiction. 15. Mr. The petitioner having acquiescenced to the jurisdiction of the Assessing Authority pursuant to the impugned order of the Commissioner, Commercial Taxes cannot approbate and reprobate at the same time. Since in pursuance thereof, an assessment order has already been passed, the petitioner has a statutory remedy of appeal and he cannot be permitted to avail the writ jurisdiction. 15. Mr. Jan, learned senior counsel in support of his arguments has placed reliance upon various authorities and in connection with the submission that the revisional order passed by the Commissioner, Commercial Taxes is beyond time relied upon State of Punjab and Others vs. Bhatinda District Cooperative Milk Producers Union Ltd. (2007) 11 SCC 363 to submit that even if no statutory period for limitation is provided for exercise suo-moto revisional power, it has to be exercised within a reasonable period which has to be determined depending upon the nature of the case. The other authority in this connection relied upon by him is that of Joint Collector Ranga Reddy District and Another vs. D. Narsing Rao and Others, (2015) 3 SCC 695 . In the said case also, the above principle has been reiterated and it has been held that suo-moto revisional power has to be exercised within reasonable period even if no limitation is prescribed under the statute. He would submit that the reasonable period in the present case would not be more than three years and, as such, the order is without jurisdiction. 16. Mr. Jan, learned senior counsel has also drawn the attention of the court to the various provisions of Section 7 of the Act which lays down the procedure for assessment and reassessment and would submit that no order of assessment would be made after expiry of four years from the expiry of one year from the end of the year in which the return or revised return is filed whichever is later and submits that the order of fresh assessment is to be made before expiry of two years from the end of the financial year in which previous order is passed. 17. It is in the light of the above provisions that he submits that the reasonable period for making the assessment cannot be more than three years and the reopening of the case after five years in exercise of revisional power is nothing, but arbitrary and without jurisdiction. 18. 17. It is in the light of the above provisions that he submits that the reasonable period for making the assessment cannot be more than three years and the reopening of the case after five years in exercise of revisional power is nothing, but arbitrary and without jurisdiction. 18. Notwithstanding the arguments advanced by Mr. Jan, touching the merits of the impugned order dated 22nd December, 2008 passed by respondent No. 2 Commissioner, Commercial Taxes, we have to first deal with the preliminary objection of the learned Advocate General as to the maintainability of the writ petition as according to him, the petitioner has acquiescenced to the jurisdiction of the assessing authority pursuant to the remand. 19. A bare perusal of the order dated 22nd December, 2008 passed by respondent No. 2, Commissioner, Commercial Taxes in exercise of its revisional power under order 12 of the Act would reveal that he has set-aside the order of the appropriate authority dated 27th June, 2003 granting the benefit of amnesty scheme to the petitioner and has remanded the case to the Assessing Authority for passing a fresh order. 20. In pursuance of the above order and direction of the respondent No. 2, Commissioner, Commercial Taxes, the respondent No. 4, Assessing Authority proceeded in the matter and issued notice in the prescribed form to the petitioner which was duly acknowledged by him on 2nd April, 2009, whereupon it submitted its reply dated 21st April, 2009. The petitioner appeared before the Assessing Authority on 1st April, 2009. The petitioner was again afforded opportunity of hearing and to file objections. In response to which it submitted objections on 22nd October, 2009. A bare perusal of the reply/objection as submitted by the petitioner before the Assessing Authority would reveal that the petitioner at no point of time challenged the jurisdiction of the Commissioner, Commercial Taxes in passing the impugned order rather submitted itself to the jurisdiction of the Assessing Authority. 21. In fact, the petitioner did not challenge the order of the respondent No. 2, Commissioner, Commercial Taxes dated 22nd December, 2008 until and unless the Assessing Authority had passed the order dated 30th March, 2011. This itself reflects that the petitioner had accepted the order of the Commissioner and participated in the proceedings before the Assessing Authority of his own free will. This itself reflects that the petitioner had accepted the order of the Commissioner and participated in the proceedings before the Assessing Authority of his own free will. It was only after the order of the Assessing Authority had gone against him that he woke up and ran to the High Court in the year, 2012 to challenge the order of the Commissioner, Commercial Taxes as well as of the Assessing Authority. 22. It is thus clear that the petitioner is blowing hot and cold in the same breath. He is accepting the order of the respondent No. 2, Commissioner, Commercial Taxes by participating in the proceedings before the Assessing Authority in pursuance thereof and then turning around to challenge it once the order of Assessing Authority has gone against him. He has taken a calculated risk by not challenging the order of the Commissioner instantly and subjecting itself to the jurisdiction of the Assessing Authority. 23. Acquiescence is a principle of equity and estoppel follows acquiescence. A passive acceptance or an implied consent to any order amounts to acquiescence with the result that the person giving such tacit acceptance is estopped under law from challenging the said order. A Constitution Bench of the Supreme Court in Pannalal Binjraj vs. Union of India and Others, AIR 1957 SC 397 explained the scope of estoppel following acquiescence by observing that when an order is passed against a person and he submits to the jurisdiction of the said order without raising any objection, he cannot be permitted to challenge the said order subsequently merely because he could not succeed there. Such participation of the person in the proceedings subsequent to the order on the basis of his conduct disentitles him from any relief. 24. The doctrine of “Approbate and Reprobate” is one of the species of estoppel. It is settled proposition of law that once an order passed is complied with and is accepted by the party, he cannot be allowed to challenge it subsequently on any ground. Where a person knowingly accepts the benefits of an order, he is estopped on the doctrine of “Approbate and Reprobate” to challenge its correctness. 25. It is settled proposition of law that once an order passed is complied with and is accepted by the party, he cannot be allowed to challenge it subsequently on any ground. Where a person knowingly accepts the benefits of an order, he is estopped on the doctrine of “Approbate and Reprobate” to challenge its correctness. 25. In view of the aforesaid facts and circumstances, the petitioner has certainly acquiescenced to the jurisdiction of the Assessing Authority meaning thereby he has accepted the decision of respondent No. 2 Commissioner, Commercial Taxes and, as such, is not entitled to challenge the same at this stage. Notwithstanding the above, as in pursuance of the above impugned order, the Assessing Authority has already passed an order of assessment against which a statutory appeal lies under section 11 of the Act, the petitioner is free to avail the said remedy and may seek exclusion of the period during which this writ petition by him had remained pending before this court in accordance with the analogy of Section 5 and 14 of the Limitation Act. 26. The writ petition is devoid of merit and, as such, is dismissed.