(M.R. Shah and B.V. Nagarathna, JJ.)
Union of India and Another ________________________ Appellant(s);
v.
Rajhans Impex Pvt. Ltd. and Another ______________ Respondent(s).
Civil Appeal No. 6761/2021 (Arising out of SLP (C) No. 12294/2021), decided on November 12, 2021
The Order of the court was delivered by
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned Judgment and Order dated 09.01.2020 passed by the High Court of Gujarat at Ahmedabad in R/Special Civil Application No. 12550 of 2017 by which the High Court has allowed the said writ petition and has quashed and set aside the Order-in-Original passed by the Assessing Officer in exercise of powers under Article 226 of the Constitution of India, the Union of India has preferred the present appeal.
3. We have heard Shri N. Venkataraman, learned Additional Solicitor General appearing on behalf of the appellants and Shri V. Shridharan, learned Senior Counsel appearing for the respondents.
4. It is not in dispute that the writ petition before the High Court was against the Order-in-Original (O-I-O) passed by the Assessing Officer without availing the alternative remedy of statutory appeal. Though a specific plea was taken on behalf of Union of India not to entertain the writ petition against the O-I-O without availing the alternative statutory remedy available to the Assessing Officer by way of appeal, the High Court has not at all dealt with the same in detail. It cannot be disputed that there are no specific findings given by the High Court that the Assessing Officer who passed the O-I-O lack total jurisdiction. As such it cannot be said that there was total lack of jurisdiction on the part of the Assessing Officer in passing the O-I-O. Despite the above the High Court has entertained the writ petition under Article 226 of the Constitution of India and has entered into the merits of the case though the original writ petitioner did not avail the alternative statutory remedy of appeal against the order of O-I-O.
5. At this stage, learned counsel appearing on behalf of the respondents – original writ petitioners has also fairly conceded that in that view of the matter, the respondents herein – original writ petitioners may be permitted to file the statutory appeal before the Appellate Authority against the Order-in-Original to be filed within a period of four weeks subject to complying with the other requirements while preferring the statutory appeals. However, has requested to make observations that if appeal is preferred within a period of four weeks from today the same be entertained without raising the issue of limitation and it may be suitably observed that all the contentions which may be available to the respective parties are kept open.
6. In view of the above, the impugned judgment and order passed by the High Court dated 09.01.2020 passed in R/Special Civil Appeal No. 12550 of 2017 is hereby quashed and set aside. However, it may be open for the respondents – original writ petitioners to prefer the statutory appeal against the Order-in-Original and it is observed that if the same is filed within a period of four weeks from today the same be considered in accordance with law and on merits subject to complying other requirements while preferring the appeal such as pre-deposit etc. however without raising the issue with respect to limitation. All the contentions which may be available in law to the respective parties are kept open.
7. The present appeal is allowed accordingly to the aforesaid extent. No costs.
SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No. 12294 of 2021
Union of India & Anr.….Appellant(s)
v.
Rajhans Impex Pvt. Ltd. & Anr.….Respondent(s)
(IA No. 95697/2021-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT)
Date : 12-11-2021 This appeal was called on for hearing today.
(Before M.R. Shah and B.V. Nagarathna, JJ.)
For Appellant(s) Mr. N. Venkataraman, ASG
Mr. B. K. Satija, Adv.
Mr. Divyank H. Rathi, Adv.
Mr. Himanshu Satija, Adv.
Mr. Mukesh Kumar Maroria, AOR
Ms. Binu Tamta, Adv.
For Respondent(s) Mr. V. Sridharan, Sr. Adv.
Mr. Anand Nainavati, Adv.
Mr. Aditya Bhattacharya, Adv.
Ms. Apeksha Mehta, Adv.
Ms. Mounica Kasturi, Adv.
Ms. Charanya Lakshmikumaran, AOR
UPON hearing the counsel the Court made the following
ORDER
8. Leave granted.
9. The civil appeal is allowed in terms of the signed order.
10. Pending application(s) stands disposed of.
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