Hon'ble Dr. Satish Chandra, J.
(Per: Tarun Agarwala, J.) The petitioner is a Government of India undertaking and has entered into a works contract with Rail Vikas Nigam Limited for construction of roadbed, bridges, installation of tracks and railway electrification on the Aligarh-Ghaziabad section in the State of Uttar Pradesh. The petitioner has filed the present writ petition for the quashing of the assessment order dated 11th March, 2010 passed by the Deputy Commissioner (Assessment), Ghaziabad for the assessment year 2007-08 imposing tax on the goods being imported in the State of U.P.
The contention of the petitioner is, that the Assessing Authority had no jurisdiction to levy tax under the works contract as the same was exempted under Section 3 of the Central Sales Tax Act, in view of the authoritative decisions of the Supreme Court in Gannon Dunkerley Vs. State of Orissa, 88 STC 205 as well as the decision of the petitioner i.e. C.I.T Vs. IRCON Ltd., 2005 UPTC 984 and CST Vs. IRCON LTD., (2013) 66 VSTC 432.
The contention of the petitioner is that the goods have been imported from outside the State of U.P. for use in the execution of the works contract and that the movement of goods and its user in the execution of the works contract are integrally connected. The contention of the petitioner is that the movement of the goods from outside the State of U.P. used in the execution of the works at the site located in the State of U.P. is covered under Section 3 of the Central Sales Tax Act and, consequently, no tax is payable.
Having heard Sri Bharat Ji Agarwal, the learned Senior Counsel assisted by Sri Parv Agarwal, the learned counsel for the petitioner and Sri C.B. Tripathi, the learned counsel for the State of U.P., we are of the opinion that the petitioner is required to establish that the goods purchased by him outside the State of U.P. is actually being utilized towards the works contract. Whether the goods that was ordered and imported in the State of U.P. and used as per the terms of the contract is a question of evidence, which can only be appreciated by a fact finding authority. Whether the deployment of goods was made in pursuance of the works contract are issues which are required to be adjudicated and decided by the authority concerned. The mere fact that the petitioner was exempted in the previous assessment year cannot be a ground to conclude that the transactions of this particular year is the same. The petitioner is required to establish that the goods purchased by him have actually been utilized towards the works contract. Such controversy is factual in nature, which can only be examined by the appellate authorities and cannot be examined in a writ jurisdiction.
The learned Senior Counsel placed reliance upon a decision of the Supreme Court in State of Madhya Pradesh and others Vs. Sanjay Nagayach and others, 2013 (7) SCC 25 wherein the Supreme Court held that the High Court rightly exercised the jurisdiction under Article 226 of the Constitution in holding that the alternative remedy of the appeal is not a bar in exercising the writ jurisdiction since the order passed by the Joint Registrar was arbitrary. The Supreme Court held:
"34. The High Court, in our view, has therefore rightly exercised its jurisdiction under Article 226 of the Constitution and the alternative remedy of appeal is not a bar in exercising that jurisdiction, since the order passed by the Joint Registrar was arbitrary and in clear violation of the second proviso to Section 53(1) of the Act.
39. We fail to see why the Joint Registrar has overlooked those binding judicial precedents and the ratio decidendi. Judicial rulings and the principles are meant to be followed by the statutory authorities while deciding similar issues based on the legal principles settled by judicial rulings. The Joint Registrar, while passing the impugned order, has overlooked those binding judicial precedents."
No doubt, alternative remedy is not a bar in invoking the writ jurisdiction under Article 226 of the Constitution. It is a discretionary jurisdiction, which has to be exercised with caution. It is not enough to say that there was an error of law and, consequently, the Court was bound to interfere in a writ jurisdiction. The Court is of the view that rule of alternative remedy is one of discretion and is not one of compulsion. In Harbanslal Sahnia Vs. Indian Oil Corporation Ltd., 2003 (2) SCC 107, the Supreme Court held that the rule of exclusion of a writ jurisdiction by availability of an alternative remedy was a rule of discretion and not one of compulsion and that the Court must consider the pros and cons of the case and only then may interfere, if it comes to the conclusion that the petitioner sought enforcement of any fundamental rights of where there was a failure of the principles of natural justice or where the orders were wholly without jurisdiction or where the vires of an Act was challenged. The same view was reiterated by the Supreme Court in Whirlpool Corporation Vs. Registrar of Trade Marks, 1998 (8) SCC 1, State of H.P. Vs. Gujrat Ambuja Cement Ltd., 2005 (6) SCC 499 and Sanjana M. Wig Vs. Hindustan Petroleum Corporation Ltd., 2008 (8) SCC 242.
It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (State of U.P. Vs. Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. Vs. State of Orissa, (1983) 2 SCC 433; State of H.P. Vs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499). Similar, view was reiterated by the Supreme Court in Commissioner Of Income Tax & Ors Vs. Chhabil Dass Agarwal, 2014 (1) SCC 603.
The Constitution Benches of the Supreme Court K.S. Rashid and Sons Vs. Income Tax Investigation Commission, AIR 1954 SC 207; Sangram Singh Vs. Election Tribunal, Kotah, AIR 1955 SC 425; Union of India Vs. T.R. Varma, AIR 1957 SC 882; State of U.P. Vs. Mohd. Nooh, AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. Vs. State of Madras, AIR 1966 SC 1089 have held that though Article 226 confers a very wide powers in the matter of issuing writs on the High Court, the remedy of writ absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction.
In the instant case, we find that petitioner relies upon the decisions given in his own case wherein it has been held that the goods brought into the State of U.P. was in pursuance of a works contract and, therefore, was exempted under Section 3 of the Central Sales Tax Act. The said decision passed in a previous assessment years cannot be considered in the present assessment year, inasmuch as the goods purchased in the assessment year in question and brought into the State of U.P. is required to be established by evidence and proved that it was used and utilized towards the works contract. Consequently, reliance on a decision in its own case for the previous assessment year cannot form the basis for claiming exemption in the present assessment year.
Since factual controversy arises, we are of the opinion that such facts cannot be examined in a writ jurisdiction and can best be examined by the appellate authority.
For the reasons stated aforesaid, the writ petition is dismissed on the ground of alternative remedy.
In the event, the petitioner files an appeal within six weeks from today, the same shall be entertained by the appellate authority without raising any question on limitation. The appeal shall be decided on merits after giving an opportunity of hearing to the petitioner.
We further direct that in the event, the appeal is filed, the same shall be decided by the appellate authority within three months from the date of presentation of the appeal. Till the disposal of the appeal, no recovery shall be made pursuant to the assessment order.