# THE STATE OF MAHARASHTRA AND OTHERS v. GREATSHIP (INDIA) LIMITED

- **Citation:** [2022] 4 S.C.R. 840
- **Court:** Supreme Court of India
- **Decided:** 2022-09-20
- **Case number:** Civil Appeal No. 4956 of 2022
- **Bench:** M. R. Shah, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-maharashtra-and-others-v-greatship-india-limited-36113
- **Pages:** 10

## Headnote

Alternate Remedy - Availability of - Constitution of India -
Art.226 - Writ petition under, entertainability of - Maharashtra
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
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
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 -
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
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.
[2022] 4 S.C.R. 840
840
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841
Titaghur Paper Mills Co. Ltd. v. State of Orissa (1983)
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,
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 :
[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
[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
[2009] 11 SCR 953
referred to Para 5.1
[1998] 2 Suppl. SCR 359
referred to Para 5.1

## Text

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SUPREME COURT REPORTS
[2022] 4 S.C.R.
THE STATE OF MAHARASHTRA AND OTHERS
v.
GREATSHIP (INDIA) LIMITED
(Civil Appeal No. 4956 of 2022)
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
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
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
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 -
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
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.
[2022] 4 S.C.R. 840
840
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Titaghur Paper Mills Co. Ltd. v. State of Orissa (1983)
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,
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 :
[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
[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
[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
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,
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.
THE STATE OF MAHARASHTRA AND OTHERS v. GREATSHIP
(INDIA) LIMITED
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SUPREME COURT REPORTS
[2022] 4 S.C.R.
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
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
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
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,
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
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
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
has entertained the said writ petition against the assessment order under
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Article 226 of the Constitution of India and has passed the impugned
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.
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
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
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
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
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.
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
THE STATE OF MAHARASHTRA AND OTHERS v. GREATSHIP
(INDIA) LIMITED [M. R. SHAH, J.]
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SUPREME COURT REPORTS
[2022] 4 S.C.R.
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
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
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
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
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
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
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 bypassing the statutory remedies, is required to be referred to. After
considering the earlier decisions of this Court, in paragraphs 49 to 52, it
was observed and held as under:
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"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)
"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
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
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."
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)
"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
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
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
THE STATE OF MAHARASHTRA AND OTHERS v. GREATSHIP
(INDIA) LIMITED [M. R. SHAH, J.]
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SUPREME COURT REPORTS
[2022] 4 S.C.R.
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
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
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
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.
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)
"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
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
itself restricted to the pleadings of the State but would be free
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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
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;
(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) 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
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
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."
53.In Raj Kumar Shivhare v. Directorate of Enforcement [(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. 781, paras
31-32)
THE STATE OF MAHARASHTRA AND OTHERS v. GREATSHIP
(INDIA) LIMITED [M. R. SHAH, J.]
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"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 goby 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.
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."
7. Applying the law laid down by this Court in the aforesaid
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
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
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.
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.
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10. Under the circumstances, the impugned judgment and order
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
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
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
case, there shall be no order as to costs.
Divya Pandey
Appeal allowed.
(Assisted by : Roopanshi Virang, LCRA)
THE STATE OF MAHARASHTRA AND OTHERS v. GREATSHIP
(INDIA) LIMITED [M. R. SHAH, J.]