In M/s Salanki Associates v. Joint Commissioner of Commercial Taxes & Ors, the Karnataka High Court dismissed a writ petition on ground of availability of alternative remedy and held that assessee cannot waive the statutory right of filing appeal and approach High Court merely to avoid the payment of pre-deposit.
The petitioner, in the instant case, approached the High Court filing a writ petition challenging the legal validity of the order passed by the Joint Commissioner of Commercial Taxes (Appeals), Bangalore, whereby the learned Joint Commissioner has upheld the re-assessment order along with penalty, and interest as levied by the Assessing Authority.
Before the High Court, the petitioners submitted that they preferred writ petition over filing a statutory appeal before the Tribunal u/s 63 of the Act for the reason that they would have to pay deposit of certain amount at the time of filing of appeal. They urged that the input tax claim against which the petitioners have right is already with the department. According to them, if they approached the Tribunal, would suffer not only the loss of input amount which is with the Department, but equally suffer the loss of money which he would be required to deposit for filing an appeal.
The bench found the above argument of the petitioners unacceptable for the following reasons. “Firstly, the right to file an appeal is a statutory right. Once the said right has been bestowed upon the litigant, even if with certain conditions, the litigant is required to exhaust the alternate remedy before approaching this court under Articles 226 and 227 of the Constitution of India. Merely because the petitioner may be required to deposit certain amount before invoking the appellate jurisdiction, the appeal, it would not make the appellate forum an inefficacious alternate remedy. Moreover, merely because the petitioner is required to deposit certain amount, the petitioner cannot be permitted to scuttle the available efficacious alternate remedy and to rush to this court. If such stand were accepted by this Court, it would permit the litigant to abuse the process of law and the process of Court. Since the availability of efficacious alternate remedy is a self-imposed restriction upon the High Court, this court would be justified in declaring the present writ petition as not maintainable due to availability of efficacious alternate remedy.”
Read the full text of the Judgment below.
