1

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

[CIRCUIT BENCH AT PORT BLAIR]

PRESENT: THE HON'BLE JUSTICE ARIJIT BANERJEE

WPA/345/2025

M/s. Seashell vs. The Lt. Governor and Others

With

WPA/391/2025

Shri Praveen vs. The Lt. Governor and Others

With

WPA/392/2025

M/s. Sinclairs Hotel Limited Vs. The Lt. Governor and

Others

With

WPA/393/2025

Smti. C. Kalaiarasi Vs The Lt. Governor and Others

With

WPA/394/2025

M/s. Aquays Hotels and Resorts Pvt. Ltd. vs. The Lt.

Governor and Others

With

2

WPA/395/2025

Shri T. Kannan Vs. The Lt. Governor and Others

With

WPA/396/2025

Shri. V. Ravichandran Vs. The Lt. Governor and Others

With

WPA/397/2025

M/s. Hotel Sentinel Vs. The Lt. Governor and Others

With

WPA/398/2025

Welcomehotel Bay Island, Unit of ITC Hotel Ltd. Vs. The Lt.

Governor and Others

With

WPA/399/2025

M/s. Oriental Filling Station Vs. The Lt. Governor and

Others

With

WPA/400/2025

M/s. Jadwet Trading Company Vs. The Lt. Governor and

Others

With

3

WPA/401/2025

M/s. Royal Petroleum Vs. The Lt. Governor and Others

With

WPA/418/2025

M/s. Kamala Trading Vs. The Lieutenant Governor and

Others

With

WPA/420/2025

M/s. Manoj Marketing Vs. The Lt. Governor and Others

With

WPA/566/2025

M/s. Hotel Arasi Vs. The Lt. Governor and Others

With

WPA/568/2025

M/s. Medival Islander Inn Bar Vs The Lt. Governor and

Others

With

WPA/569/2025

M/s. Hotel Sarvottam (A) Pvt. Ltd. Vs. The Lt. Governor

and Others

With

4

WPA/570/2025

M/s. Hotel Rajadeepam Vs The Lieutenant Governor and

Others

With

WPA/573/2025

M/s. Whistling Wood Vs. The Lieutenant Governor and

Others

With

WPA/574/2025

M/s. Apt Bar and Restaurant Vs. The Lieutenant Governor

and Others

With

WPA/575/2025

M/s. Dharma Cool Bar Vs The Lieutenant Governor and

Others

With

WPA/583/2025

M/s. Hotel Raj Prakash Vs The Lieutenant Governor and

Others

With

WPA/366/2025

M/s. TSG Hotels and Resorts vs. The Lieutenant Governor

and Others

5

With

WPA/367/2025

Shri V. Karuppaiah Vs. The Lieutenant Governor and

Others

With

WPA/368/2025

M/s. TSG Aqua (TSG Bella Bay) Vs. The Lieutenant

Governor and Others

With

WPA/369/2025

Shri K. V. Rama Rao Vs. The Lieutenant Governor and

Others

With

WPA/370/2025

M/s. Holiday Inn –vs. The Lieutenant Governor and Others

With

WPA/371/2025

Smti. Usha Moorthy –vs- The Lieutenant Governor and

Others

With

WPA/372/2025

M/s. Aparupa Sands Marina Vs. The Lieutenant Governor

and Others

6

With

WPA/373/2025

M/s. Hotel Aparupa (A) Pvt. Ltd. vs. The Lieutenant

Governor and Others

With

WPA/374/2025

M/s. Southern Holdings and Investments (Chennai) Pvt.

Ltd.

Vs. The Lieutenant Governor and Others

With

WPA/375/2025

Shri K. V. Narsimha Rao Vs. The Lieutenant Governor and

Others

With

WPA/381/2025

M/s. Silver Sand Neil vs. The Lieutenant Governor and

Others

With

WPA/383/2025

Smti. K. Shobha vs. The Lieutenant Governor and Others

With

WPA/384/2025

7

M/s. C. S. Empire vs- The Lieutenant Governor and

Others

With

WPA/385/2025

M/s. Pearl Park Beach Resort vs. The Lieutenant Governor

and Others

With

WPA/546/2025

M/s. Annu Bar and Restaurant vs. The Lt. Governor and

Others

With

WPA/547/2025

M/s. Pristine Beach Resort vs. The Lt. Governor and

Others

With

WPA/549/2025

M/s. Ashoka Bar and Restaurant vs. The Lt. Governor

and Others

With

WPA/550/2025

M/s. B. R. B. Bar and Restaurant Vs Lieutenant Governor

and Another

With

8

WPA/551/2025

M/s. Purna Pushpawalli Bar and Restuarant Vs.

Lieutenant Governor and Another

With

WPA/552/2025

M/s. Stalin Bar and Restaurant vs. The Lieutenant

Governor and Others

With

WPA/558/2025

M/s. Hotel A.T.Villa Vs. The Lieutenant Governor and

Others

With

WPA/562/2025

M/s. Hotel Exel Bar and Restaurant vs. The Lt. Governor

and Others

With

WPA/563/2025

M/s. Unique Bar and Restaurant vs. The Lt. Governor and

Others

With

WPA/564/2025

M/s. G. International vs. The Lt. Governor and Others

9

With

WPA/565/2025

M/s. G. M. S. Restaurant Vs The Lt. Governor and Others

For the petitioner : Ms. Anjili Nag, Sr.Adv.

Mr. Adarsh Ilango,

For the respondents : Mr. Rakesh Kumar

Heard on : February 04, 2026

Delivered on : February 10, 2026

ARIJIT BANERJEE, J.

1. Learned counsel for the parties told me that these writ

petitions involve similar facts and same points of law.

Hence, they were heard analogously. However, for the sake

of convenience, I will refer to the records of WPA/345/2025

(M/s Seashell vs. The Lieutenant Governor and others).

2. The impugned notices issued under section 32

(Assessment of Tax and Interest) and Section 33

(Assessment of Penalty) of the Andaman and Nicobar

Islands Value Added Tax Regulation, 2017 (in short 2017

Regulation), may be dated differently in the different writ

petitions but in substance are the same. The orders

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rejecting the written objections filed by the petitioners in

terms of section 74 of the VAT Regulation may also be

differently dated but in substance are the same.

3. Notices under sections 32 and 33 of the 2017

Regulation were served on the petitioner. The petitioner

filed statutory objection as per section 74 of the 2017

Regulation. Such objection was rejected. Challenging such

rejection order and the two notices, the petitioner has

approached this Court.

4. The respondent authorities challenged the

maintainability of the writ petition on the ground that there

exists an alternative remedy by way of statutory appeal

under section 76 of the VAT Regulation. In response, the

petitioner submitted that though an Appellate Tribunal has

been constituted recently vide Gazette Notification dated

August 19, 2025, yet, the manner of regulating the

procedure and disposal of the business of the Appellate

Tribunal has not been brought into force in the form of

Rules as required under section 73(6) of the VAT

Regulation. Hence, the petitioner cannot be expected to

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approach the Tribunal when the remedial forum has been

hastily constituted without there being any clarification as

regards the manner of its functioning.

5. On the point of maintainability, it was further

submitted that the VAT Commissioner while carrying out

the assessment exercise has exceeded his jurisdiction and

violated the principles of natural justice. The assessment

is barred by limitation. A plea of limitation concerns the

jurisdiction of the Court. When an order of a Tribunal is

challenged, inter alia, on the ground of being without

jurisdiction, the writ court ought to entertain an

application under Article 226 of the Constitution in spite of

availability of an alternative remedy.

6. Amplifying on the point of limitation, Mr. Adarsh

Ilango, learned counsel representing the petitioner, drew

my attention to Section 34 of the VAT Regulation and

submitted that the Commissioner is empowered to make

assessment or reassessment within a period of four years

from the end of the year comprising tax period(s).

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7. In the present case, the last date for issuing notice of

assessment stood expired. Hence, the notices under

sections 32 and 33 of the VAT Regulation are barred by

limitation. Consequently, the assessment period(s) FY

2017-18, FY 2018-19, FY 2019-2020 cannot be brought

under the purview of assessment or reassessment as the

assessment has been made between 2024 and early 2025.

Therefore, the said notices are without jurisdiction.

8. Learned counsel submitted that the date from which

limitation period for assessment has to be calculated is the

end of the financial year comprising of the tax period for

which the assessee has filed returns. ‘Year’ has been

defined in section 2(1)(zo) of the 2017 Regulation to mean

the financial year or the first date of April to the last date of

March. Therefore, the cutoff date/limitation for assessment

of the relevant financial years would be as follows:

Tax period Beginning of

Limitation

End of Limitation

FY 2017-2018 31.03.2018 31.03.2022

FY 2018-2019 31.03.2019 31.03.2023

FY 2019-2020 31.03.2020 31.03.2024

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9. Learned advocate further submitted that the proviso

to section 34(1) of the VAT Regulation will not be

applicable. That can only be applied when tax has not been

paid. The question of omission or failure to disclose

something will arise only when tax is unpaid. In the

present case, it is undisputed that the assessee has paid

requisite tax. There is also no indication in the notices

issued under sections 32 and 33 that the Commissioner

had reason to apply such proviso.

10. Insofar as the FY 2020-2021 is concerned, learned

counsel submitted that the assessment for that period is

non est in the eye of law due to non-compliance of section

58 of the VAT Regulation and violation of the principle of

audi alteram partem. In support of the contention that the

notices for assessment of taxes and interest and

assessment of penalty being time barred are without

jurisdiction, learned counsel referred to the following cases.

(i) M/s Tata Teleservices Limited vs. The State of

Chhattisgarh and others (Civil Appeal NO.1993 of

2022).

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(ii) Calcutta Discount Co. Limited vs. Income Tax

Officer, Companies District-I, Calcutta and another

in 1961 AIR Supreme Court 372.

(iii) M/s Yogi Petroleum Vs. the Commissioner (VAT),

Dadar and Nagar Haveli (Writ Petition (Stamp)

NO.93644 of 2020).

(iv) Durga Steel Rolling Mills Vs. Commissioner of

Commercial Taxes [2024: AHC-LKO:22796] and

M/s Sayar Cars Vs. Appellate Deputy Commissioner

(CT) WP No.30251, 30256 and 30258 of 2019.

(v) The Calcutta Municipal Corporation and others vs.

The Cricket Association of Bengal and others

(APO/248 of 2016 with WPO/2662 of 1996]

11. Learned counsel then submitted that section 32(1) of

the VAT Regulation stipulates that the Commissioner by a

single order can make an assessment so long as all the tax

period(s) in that are comprised in one year. In the present

15

case, the Commissioner has exceeded his jurisdiction in

incorporating more than one taxation year in a single order

of assessment. Therefore, the notice of assessment of tax

under section 32 of the VAT Regulation is contrary to law

and hence bad.

12. Learned counsel then drew my attention to section

58(4)(b) of the VAT Regulation and submitted that the said

provision stipulates that the Commissioner shall only after

considering the returns, evidence furnished in the returns

and the evidence acquired in the course of audit, issue

notices under sections 32 and 33 of the Regulation.

Subsections (1) to (3) of Regulation 58 of the VAT

Regulation provide for a notice being served on the

assessee intimating for audit of the business, hearing,

inspection, along with production of documents and books

of accounts. None of these provisions were complied with

by the respondent authorities.

13. Learned counsel submitted that although one notice

was sent to the petitioner calling upon it to submit books of

accounts for assessment of value added tax such notice

16

was not in compliance of Regulation 58. When the

Commissioner felt that audit was necessary before making

an assessment, it is not understood why the Commissioner

proceeded with the assessment without conducting an

audit.

14. The Commissioner unilaterally proceeded to make the

assessment without permitting the petitioner to participate

in the process and without granting an opportunity of

hearing to the petitioner. The Commissioner has thereby

acted in breach of the principle of audi alteram partem. In

this connection, reliance was placed on the decision of the

Bombay High Court in the case of M/s Yogi Petoleum

(supra).

15. The next point urged was that the Andaman and

Nicobar Value Added Tax Rules were notified by the

Commissioner (VAT) through publication in the official

gazette in 2020. Section 70(5) of the VAT Regulation states

that “every notification issued by the Commissioner under

this Regulation shall be published in the Official Gazette

and shall not have any effect prior to such publication.”

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Therefore, the 2020 Rules cannot be given retrospective

effect. Further, Section 112(3) states that any Rule made

under this Regulation may be made so as to be

retrospective to any date not earlier than the date of

commencement, provided that no Rule shall be given effect

retrospectively if it would have the effect of prejudicially

affecting the interests of a dealer.

16. Learned counsel submitted that in both the notices

issued under sections 32 and 33, it is absolutely unclear

as to how the petitioner is liable for violation of any of the

provisions of VAT Regulation or the Rules. The notices are

vague, devoid of material particulars and therefore, cannot

be acted upon.

17. Mr. Adarsh Ilango submitted that the assessment by

the Commissioner under section 33 is based on the

principle of “best judgment assessment”. When any

assessment is based on that principle, penalty cannot be

imposed. In this connection, reliance was placed on the

following decisions:

18

(i) Durga Steel Rolling Mills Vs. Commissioner

of Commercial Taxes [2024: AHC-

LKO:22796];

(ii) M/s Sayar Cars Vs. Appellate Deputy

Commissioner (CT) WP No.30251, 30256 and

30258 of 2019

18. Learned counsel submitted that under section 33(1),

the Commissioner has to have a reason to believe that

liability to pay a penalty has arisen. In the notice under

section 33 that was served on the petitioner, no reason is

mentioned as to why penalty was being imposed on the

petitioner. Further, without assigning any valid reason, the

Commissioner chose to impose the maximum amount of

penalty prescribed under the statute clearly indicating that

the assessment of penalty has been made arbitrarily, with

malafide intention to harass the assessee. The notices are

unreasoned. The basis on which the amounts of tax or

penalty have been arrived at, has not been disclosed. When

such a demand notice fails to provide the basis on which

the amount claimed is arrived at, the notice becomes

19

arbitrary and unsustainable in the eye of law. In this

connection, reliance was placed on the case of Calcutta

Municipal Corporation and others vs. The Cricket

Association of Bengal and others [APO/248 of 2016

with WPO/2662 of 1996).

19. Learned counsel then referred to the decision of a

Division Bench of this Court, dated May 06, 2025, rendered

in WP.TT/8/2025 (Jharna Saha vs. Joint Commissioner

of Sale Tax, Behala Charge and others) in support of

his contention that if an assessment is made without

serving prior notice on the assessee, the assessment is

rendered null and void for want of jurisdiction.

20. Learned counsel relied on the decision of the Hon’ble

Supreme Court in the case of M/s Shiv Steels vs. State of

Assam reported in (2025) INSC 1126, in support of his

submission that in construing fiscal statutes and in

determining the liability of a subject to tax, one must have

regard to the strict letter of law. If the revenue satisfies the

Court that the case falls strictly within the provisions of the

law, the subject can be taxed. If , on the other hand, the

20

case is not covered within the four corners of the provisions

of the taxing statute, no tax can be imposed by inference or

by analogy or by trying to probe into the intentions of the

legislation and by considering what was the substance of

the matter.

21. Learned counsel finally referred to the decision of the

Hon’ble Supreme Court in the case of M/s Godrej Sara Lee

Ltd vs. The Excise And Taxation Officer-cum-Assessing

Authority and others reported in 2023 AIR SC 781 , in

support of his submission that where the controversy is a

purely legal one not involving disputed questions of fact but

only questions of law, then it should be decided by the High

Court instead of dismissing the writ petition on the ground

of an alternative remedy being available

22. Appearing for the Administration, Mr. Rakesh Kumar,

learned counsel submitted as follows:

(i) The Andaman and Nicobar Islands Value Added

Tax Regulation, 2017 was brought into effect from

01.07.2017. The said Regulation provided for levy

21

of taxes on sale of goods, sold on or after

01.07.2017, schedule of taxable goods, rates of tax

applicable, liability of persons/dealers to pay tax,

formula for computation of net tax, requirements

with regard to submission of returns, etc.

(ii) The Andaman and Nicobar Islands Value Added

Tax Rules, 2020, was brought into force on

14.12.2020. The Rules provided for the procedure

to be followed for giving effect to the Regulation.

The Rules defined “tax period” and provided the

periodicity for filing of returns and payment of

taxes and the procedure for complying with the

other requirements mandated under the

Regulation. The Rules also prescribed Forms for

statutory compliances.

(iii) Subsequent to the notification of the Rules, the

dealers were allowed a grace period till March 28,

2021, to file quarterly returns for the period, 2

nd

quarter of 2017-2018 to 3

rd quarter of 2020-2021,

in prescribed Form of A & N VAT 16 and for

22

clearing of dues if any for the said period. This

could not be done by the Administration in the

absence of the Rules. The grace period was granted

vide Office Order No.18 dated 07.01.2021. The

order operated prospectively and was in

consonance with Rule 25(2).

(iv) The compliance with the above mentioned office

order forms the primary basis for assessment.

Since the grace period was till March 28, 2021, no

assessment process could be initiated prior to that

date. Prior to initiation of assessment, notices

requiring submission of books of accounts and

other relevant records were served on the dealers,

which were duly acknowledged. The tax liability

was assessed on the basis of the records submitted

by the dealers.

(v) As multiple tax periods were involved i.e. period

between 01.07.2017 and 31.12.2020, all the tax

deficiencies were netted with excesses, if any,

arising between the said dates. Interest on dues, if

23

any, after such netting was concluded after March

28, 2021. Accordingly, multiple tax years were

consolidated in a single order for the convenience of

the dealers.

(vi) Penalties under the Regulation automatically arise

on default. Accordingly, penalty on default after

March 28, 2021, has been computed.

(vii) Statutory objections were filed by the dealers under

Section 74 of the Regulation. Upon hearing and

considering the cases on merits, reasoned orders

were passed by the Commissioner.

(viii) Regulation 76 provides for statutory appeal to the

appellate tribunal. The Court of Learned Chief

Judicial Magistrate-cum-Civil Judge (Senior

Division), Car Nicobar with link Court of Joint Civil

Judge (Senior Division), Sri Vijaya Puram, was

designated as the Appellate Tribunal under Section

73 of the Regulation in consultation with the

Hon’ble Chief Justice of the Calcutta High Court

24

vide A & N Gazette Notification No. 69 of 2025

dated August 19, 2025, with immediate effect.

(ix) Therefore, the petitioner has an alternative

efficacious remedy in the form of statutory appeal

and on that ground, the writ petition should be

dismissed.

(x) The Tribunal is a quasi judicial authority.

Provisions of the Civil Procedure Code, Evidence

Act, etc, apply to it. The procedure for filing of an

appeal and the manner of conducting the appeal

have been prescribed in Rules 55(A), 55(B) and 55

(C).

23. On the point of limitation and the impugned notices

under sections 32 and 33 of the Regulation being time

barred, learned counsel for the Administration submitted

as follows:

(i) Section 34 prescribes that no assessment or

reassessment shall be made after the expiry of

four years from the end of the year for which

25

returns were furnished under section 26 or

section 28.

(ii) A reading of section 26 indicates that the returns

under the said sections are to be furnished in

the format and manner and within the date

prescribed by the Commissioner. However, no

such prescription was made prior to the

notification of the Rules.

(iii) Hence, in a situation where the procedural

mechanism necessary to initiate proceedings is

not in place, the initiation of any legal process

becomes impossible.

(iv) In such circumstances, the question of limitation

becomes inherently ambiguous as no proceeding

can be said to have been capable of being

initiated in the first place.

(v) In view of the fact that the procedural framework

was brought into force only on 14.12.2020

through the official notification of the A & N

26

Islands VAT Rules, 2020 and further considering

that registered dealers were granted a grace

period until 28.03.2021 for filing of returns and

clearance of past dues as per office order dated

07.01.2021, it is evident that no proceedings

could lawfully have been initiated prior to the

expiry of the grace period.

(vi) The limitation prescribed under the statute is to

be computed from ‘the end of the year for which

returns were filed”. In the present case, although

the returns relate to the years 2017-18 to 2020-

21, no prescribed return format existed till 2020

and a statutory grace period for filing of such

returns was granted upto 28.03.2021.

(vii) As a result, returns for the second quarter of

2017-2018 to the third quarter of 2020-2021

could not be lawfully filed prior thereto, and the

condition precedent for commencement of

limitation itself did not arise earlier.

27

(viii) The Hon’ble Supreme Court while interpreting

Article 113 of the Limitation Act, 1963, in the

case of Shakti Bhog Foods Ltd. Vs. Central

Bank of India (2020) 17 SCC 260 , has held

that limitation begins to run only when the right

to sue or initiate proceedings becomes complete

and enforceable in law, and not when it exists

merely in theory.

(ix) Though Article 113 of the schedule to the

Limitation Act may not apply in terms, the

underlying principle governing accrual of an

enforceable right is of general application and

can be legitimately imported while construing

the present limitation provision.

24. Applying the settled rules of interpretation ut res

magis valeat quam pereat, the expression “year for which

returns were filed” must be construed in a manner that

gives meaningful effect to the statutory scheme, rather than

rendering the filing requirement illusory or unworkable.

Accordingly, the limitation period can commence only from

28

the end of the financial year in which the returns were

lawfully filed i.e. 28.03.2021, and not from any earlier

notional date.

25. In reply, learned counsel for the petitioner submitted

that the order issued by the Commissioner on January 07,

2021, is of no effect. Such office order was never notified by

publication in the official gazette. Without such publication

the office order would have no effect as per Regulation

70(3). Even if the Commissioner was to issue notification

and publish the same in the official gazette, the same

would not have had retrospective effect.

COURT’S VIEW:

26. Having heard learned counsel for the parties, to my

mind, the following issues fall for adjudication:-

(i) Whether the present writ petition should be

entertained notwithstanding availability of an

alternative remedy in the form of a statutory appeal

under section 76 of the Regulation.

29

(ii) Whether or not, the notice of default assessment of

tax and interest dated December 31, 2024, under

section 32 of the Regulation is time barred.

(iii) Whether or not, the notice of assessment of

penalty under section 33 dated December 31, 2024,

is bad in law.

(iv) Whether or not both the notices dated December

31, 2024, stand vitiated by reason of the same

having been issued in breach of the principles of

natural justice.

(v) Whether or not the two notices, both dated

December 31, 2024, are bad in law for being vague

and bereft of material particulars.

27. Issue numbers (i),(ii), and (iv) are inter-related. I say

this because, the writ petitioner argued that the writ

petition is maintainable in spite of there being an

alternative remedy because the notice of assessment of tax

is time barred and therefore without jurisdiction and also

because both the notices dated December 31, 2024, are

30

vitiated by reason of breach of the principles of natural

justice. Hence, these three issues are taken up together for

discussion and decision.

28. It is not in dispute that the writ petitioner has an

alternative remedy in the form of section 76 of the

Regulation, which reads as follows:-

“76. (1) Any person aggrieved by a decision made by the

Commissioner under sections 74, 84 and 85 may

appeal to the Appellate Tribunal against such decision:

Provided that no appeal may be made against a non-

appealable order under section 79.

(2) Subject to the provisions of section 77, no appeal

shall be entertained unless it is made within two

months from the date of service of the decision appealed

against.

(3) Every appeal made under this section shall be in

form, verified in such manner and shall be accompanied

by such fee as may be prescribed.

(4) No appeal against an assessment shall be

entertained by the Appellate Tribunal unless the appeal

31

is accompanied by satisfactory proof of the payment of

the amount in dispute and any other amount assessed

as due from the person:

Provided that the Appellate Tribunal may, if it

thinks fit, for reasons to be recorded in writing,

entertain an appeal against such order without

payment of some or all of the amount in dispute, on the

appellant furnishing in the prescribed manner security

for such amount as it may direct:

Provided further that no appeal shall be

entertained by the Appellate Tribunal unless it is

satisfied that such amount as the appellant admits to

be due from him has been paid.

(5) In proceedings before the Appellate Tribunal—

(a) the person aggrieved shall be limited to

disputing only those matters stated in the

objection;

(b) the person aggrieved shall be limited to

arguing only those grounds stated in the

objection; and

32

(c) the person aggrieved may be permitted to

adduce evidence not presented to the

Commissioner for good and sufficient reasons.

(6) The Appellate Tribunal shall—

(a) in the case of an assessment, confirm, reduce,

or annul the assessment (including any penalty

and interest imposed);

(b) in the case of any other decision of the

Commissioner, affirm or reject the decision; or

(c) pass such other order for the determination of

the issue as it thinks fit:

Provided that the Appellate Tribunal shall give

reasons in writing for its decision which shall

include its findings on material questions of fact

and the evidence or other material on which those

findings were based.

(7) The Appellate Tribunal shall use its best endeavours

to make a final resolution of the matter before it and for

this purpose may make a decision in substitution for the

order in dispute, including the exercise or re-exercise of

any discretion or power vested in the Commissioner.

33

(8) The Appellate Tribunal shall not set aside an

assessment and remit the matter to the Commissioner

for a further assessment, unless it has first—

(a) advised the aggrieved person of the proposed

order;

(b) offered the person the opportunity to adduce

such further evidence before it as might assist the

Appellate Tribunal to reach a final determination.

(9) Where the Appellate Tribunal sets aside an

assessment and remits the matter to the Commissioner

for a further assessment, the Appellate Tribunal shall at

the same time order the Commissioner to refund to the

person some or all of the amount in dispute:

Provided that where no order is made, it shall be

presumed that the Appellate Tribunal has ordered the

refund of the amount in dispute.

(10) Where a person has failed to attend the hearing at

the time and place stipulated, the Appellate Tribunal

may adjourn the proceedings, strike out the appeal or

proceed to make an order determining the objection in

the absence of the person.

34

(11) Save as provided in section 81 and sub-section

(12), an order passed by the Appellate Tribunal on an

appeal shall be final.

(12) The Appellate Tribunal may rectify any mistake or

error apparent from the record of its proceedings.

(13) Any order passed by the Appellate Tribunal may be

reviewed suo motu or upon an application made in that

behalf:

Provided that before any order which is likely to

affect any person adversely is passed, such person

shall be given a reasonable opportunity of being heard.”

29. It is true that on the date when the writ petition was

filed by M/s Seashell (WPA/345/2025], i.e., July 25, 2025,

the Appellate Tribunal was not functional. However, soon

thereafter, by a notification dated August 19, 2025, the

Chief Judicial Magistrate-cum-Civil Judge (Senior Division),

Car Nicobar with link Court of Joint Civil Judge (Senior

Division), Sri Vijaya Puram, was designated as the

35

Appellate Tribunal contemplated in section 76 of the VAT

Regulation, with immediate effect.

30. The ordinary rule, which is well established, is that

when an alternative efficacious remedy is available, the

High Court will not entertain a writ petition. This has

nothing to do with the jurisdiction of the High Court to

entertain such petition. An alternative remedy is not an

absolute bar to the High Court entertaining a writ petition.

This is a rule of self-imposed limitation by the High Court.

It is no more res integra that the jurisdiction of the High

Court under Artcile 226 of the Constitution of India cannot

be ousted or curtailed even by legislation far less by

existence of an alternative remedy in a particular case.

However, a writ of certiorari or mandamus or prohibition is

a discretionary remedy. The High Court normally refuses

to exercise its higher prerogative writ jurisdiction when the

writ petitioner has an alternative remedy available to him.

31. In PHR Invent Educational Society vs. UCO Bank

and others in Civil Appeal No 4845 of 2024 (arising out

36

of SLP (C) No.8867 of 2022), the Hon’ble Supreme Court

observed as follows:

“It could thus be seen that, this Court has clearly held that the

High Court will ordinarily not entertain a petition under Article

226 of the Constitution if an effective remedy is available to

the aggrieved person. It has been held that this rule applies

with greater rigour in matters involving recovery of taxes,

cess, fees, other types of public money and the dues of banks

and other financial institutions. The Court clearly observed

that, while dealing with the petitions involving challenge to the

action taken for recovery of the public dues, etc., the High

Court must keep in mind that the legislations enacted by

Parliament and State Legislatures for recovery of such dues

are a code unto themselves inasmuch as they not only contain

comprehensive procedure for recovery of the dues but also

envisage constitution of quasi-judicial bodies for redressal of

the grievance of any aggrieved person. It has been held that,

though the powers of the High Court under Article 226 of the

Constitution are of widest amplitude, still the Courts cannot

be oblivious of the rules of self-imposed restraint evolved by

this Court. The Court further held that though the rule of

exhaustion of alternative remedy is a rule of discretion and

37

not one of compulsion, still it is difficult to fathom any reason

why the High Court should entertain a petition filed

under Article 226 of the Constitution when there exists an

alternative remedy.

32. In the aforesaid case, the Hon’ble Apex Court clarified

that the High Court will not entertain a petition under

Article 226 of the Constitution, if an effective alternative

remedy is available to the aggrieved person and

particularly, if the statute under which the action

complained of has been taken itself contains a mechanism

for redressal of grievance.

33. In Babu Ram Prakash Chanda Maheshwari

Vs.Antarim Zilla Parisahd (1968 SCC Online SC 45),

the Hon’ble Supreme Court observed that it is a well-

established proposition of law that when an alternative and

equally efficacious remedy is open to a litigant, he should

be required to pursue that remedy and not to invoke the

special jurisdiction of the High Court to issue a prerogative

writ. The existence of a statutory remedy does not affect the

jurisdiction of the High Court to issue a writ. However, the

38

existence of an adequate legal remedy is a thing to be taken

into consideration in the matter of granting writs and

where such a remedy exists it will be a sound exercise of

discretion to refuse to interfere in a writ petition unless

there are good grounds therefor. The rule requiring the

exhaustion of statutory remedies before the writ will be

issued, is a rule of policy, convenience and discretion

rather than a rule of law.

34. In United Bank of India vs. Satyawati Tondon and

others (2010) 8 SCC 110, in paragraphs 43 to 45 of the

reported judgment, the Hon’ble Supreme Court observed as

follows:

“43. Unfortunately, the High Court overlooked the settled law

that the High Court will ordinarily not entertain a petition

under Article 226 of the Constitution if an effective remedy is

available to the aggrieved person and that this rule applies

with greater rigour in matters involving recovery of taxes,

cess, fees, other types of public money and the dues of banks

and other financial institutions. In our view, while dealing

with the petitions involving challenge to the action taken for

recovery of the public dues, etc., the High Court must keep in

39

mind that the legislations enacted by Parliament and State

Legislatures for recovery of such dues are code unto

themselves inasmuch as they not only contain comprehensive

procedure for recovery of the dues but also envisage

constitution of quasi judicial bodies for redressal of the

grievance of any aggrieved person. Therefore, in all such

cases, High Court must insist that before availing remedy

under Article 226 of the Constitution, a person must exhaust

the remedies available under the relevant statute.

44. While expressing the aforesaid view, we are conscious

that the powers conferred upon the High Court under Article

226 of the Constitution to issue to any person or authority,

including in appropriate cases, any Government, directions,

orders or writs including the five prerogative writs for the

enforcement of any of the rights conferred by Part III or for

any other purpose are very wide and there is no express

limitation on exercise of that power but, at the same time, we

cannot be oblivious of the rules of self-imposed restraint

evolved by this Court, which every High Court is bound to

keep in view while exercising power under Article 226 of the

Constitution.

40

45. It is true that the rule of 19 exhaustion of alternative

remedy is a rule of discretion and not one of compulsion, but it

is difficult to fathom any reason why the High Court should

entertain a petition filed under Article 226 of the Constitution

and pass interim order ignoring the fact that the petitioner can

avail effective alternative remedy by filing application, appeal,

revision, etc. and the particular legislation contains a detailed

mechanism for redressal of his grievance.”

35. In Commissioner of Income Tax and others vs.

Chhabil Dass Agarwal, (2014) 1 SCC 603 , in paragraphs

11 to 15 of the reported judgment, the Hon’ble Supreme

Court observed as follows:

“11. Before discussing the fact proposition, we would notice

the principle of law as laid down by this Court. 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

41

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. (See State of U.P. v. Mohd. Nooh [AIR 1958

SC 86] , Titaghur Paper Mills Co. Ltd. v. State of

Orissa [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983)

2 SCC 433 : 1983 SCC (Tax) 131] , Harbanslal

Sahnia v. Indian Oil Corpn. Ltd. [(2003) 2 SCC 107] and State

of H.P. v. Gujarat Ambuja Cement Ltd. [(2005) 6 SCC 499].

12. The Constitution Benches of this Court in K.S. Rashid and

Son v. Income Tax Investigation Commission [AIR 1954 SC

207] , Sangram Singh v. Election Tribunal [AIR 1955 SC 425]

, Union of India v. T.R. Varma [AIR 1957 SC 882] , State of

U.P. v. Mohd. Nooh [AIR 1958 SC 86] and K.S. Venkataraman

and Co. (P) Ltd. v. State of Madras [AIR 1966 SC 1089] have

held that though Article 226 confers very wide powers in the

matter of issuing writs on the High Court, the remedy of writ

is absolutely discretionary in character. If the High Court is

42

satisfied that the aggrieved party can have an adequate or

suitable relief elsewhere, it can refuse to exercise its

jurisdiction. The Court, in extraordinary circumstances, may

exercise the power if it comes to the conclusion that there has

been a breach of the principles of natural justice or the

procedure required for decision has not been adopted.

[See N.T. Veluswami Thevar v. G. Raja Nainar [AIR 1959 SC

422] , MunicipalCouncil, Khurai v. Kamal Kumar [AIR 1965 SC

1321 : (1965) 2 SCR 653] , Siliguri Municipality v. Amalendu

Das [(1984) 2 SCC 436 : 1984 SCC (Tax) 133] , S.T.

Muthusami v. K. Natarajan [(1988) 1 SCC 572] , Rajasthan

SRTC v. Krishna Kant [(1995) 5 SCC 75 : 1995 SCC (L&S)

1207 : (1995) 31 ATC 110] , Kerala SEB v. Kurien E.

Kalathil [(2000) 6 SCC 293] , A. Venkatasubbiah Naidu v. S.

Chellappan [(2000) 7 SCC 695] , L.L. Sudhakar Reddy v. State

of A.P. [(2001) 6 SCC 634] , Shri Sant Sadguru Janardan

Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak

Sanstha v. State of Maharashtra [(2001) 8 SCC 509] , Pratap

Singh v. State of Haryana [(2002) 7 SCC 484 : 2002 SCC

(L&S) 1075] and GKN Driveshafts (India) Ltd. v. ITO [(2003) 1

SCC 72] .]

43

13. In Nivedita Sharma v. Cellular Operators Assn. of

India [(2011) 14 SCC 337 : (2012) 4 SCC (Civ) 947] , this Court

has held that where hierarchy of appeals is provided by the

statute, the party must exhaust the statutory remedies before

resorting to writ jurisdiction for relief and observed as follows:

(SCC pp. 343-45, paras 12-14)

“12. In Thansingh Nathmal v. Supt. of Taxes [AIR 1964 SC

1419] this Court adverted to the rule of self-imposed

restraint that the writ petition will not be entertained if an

effective remedy is available to the aggrieved person and

observed: (AIR p. 1423, para 7)

‘7. … The High Court does not therefore act as a court of

appeal against the decision of a court or tribunal, to

correct errors of fact, and does not by assuming

jurisdiction under Article 226 trench upon an alternative

remedy provided by the statute for obtaining relief.

Where it is open to the aggrieved petitioner to move

another tribunal, or even itself in another jurisdiction for

obtaining redress in the manner provided by a statute,

the High Court normally will not permit by entertaining

a petition under Article 226 of the Constitution the

machinery created under the statute to be bypassed,

44

and will leave the party applying to it to seek resort to

the machinery so set up.’

13. In Titaghur Paper Mills Co. Ltd. v. State of

Orissa [Titaghur Paper Mills Co. Ltd. v. State of Orissa,

(1983) 2 SCC 433 : 1983 SCC (Tax) 131] this Court

observed: (SCC pp. 440-41, para 11)

‘11. … It is now well recognised that where a right or

liability is created by a statute which gives a special

remedy for enforcing it, the remedy provided by that

statute only must be availed of. This rule was stated

with great clarity by Willes, J. in Wolverhampton New

Waterworks Co. v. Hawkesford [(1859) 6 CBNS 336 :

141 ER 486] in the following passage: (ER p. 495)

“… There are three classes of cases in which a liability

may be established founded upon a statute. … But

there is a third class viz. where a liability not existing at

common law is created by a statute which at the same

time gives a special and particular remedy for enforcing

it. … The remedy provided by the statute must be

followed, and it is not competent to the party to pursue

the course applicable to cases of the second class. The

45

form given by the statute must be adopted and adhered

to.”

The rule laid down in this passage was approved by the

House of Lords in Neville v. London Express Newspaper

Ltd. [1919 AC 368 : (1918-19) All ER Rep 61 (HL)] and

has been reaffirmed by the Privy Council in Attorney

General of Trinidad and Tobago v. Gordon Grant and

Co. Ltd. [1935 AC 532 (PC)] and Secy. of State v. Mask

and Co. [(1939-40) 67 IA 222 : (1940) 52 LW 1 : AIR

1940 PC 105] It has also been held to be equally

applicable to enforcement of rights, and has been

followed by this Court throughout. The High Court was

therefore justified in dismissing the writ petitions in

limine.’

14. In Mafatlal Industries Ltd. v. Union of India [(1997) 5

SCC 536] B.P. Jeevan Reddy, J. (speaking for the majority

of the larger Bench) observed: (SCC p. 607, para 77)

‘77. … So far as the jurisdiction of the High Court under

Article 226—or for that matter, the jurisdiction of this

Court under Article 32—is concerned, it is obvious that

the provisions of the Act cannot bar and curtail these

46

remedies. It is, however, equally obvious that while

exercising the power under Article 226/Article 32, the

Court would certainly take note of the legislative intent

manifested in the provisions of the Act and would

exercise their jurisdiction consistent with the provisions

of the enactment.’”

(See G. Veerappa Pillai v. Raman & Raman Ltd. [(1952)

1 SCC 334 : AIR 1952 SC 192] , CCE v. Dunlop India

Ltd. [(1985) 1 SCC 260 : 1985 SCC (Tax) 75] , Ramendra

Kishore Biswas v. State of Tripura [(1999) 1 SCC 472 :

1999 SCC (L&S) 295] , Shivgonda Anna Patil v. State of

Maharashtra [(1999) 3 SCC 5] , C.A. Abraham

v. ITO [AIR 1961 SC 609 : (1961) 2 SCR 765] , Titaghur

Paper Mills Co. Ltd. v. State of Orissa [Titaghur Paper

Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 :

1983 SCC (Tax) 131] , Excise and Taxation Officer-cum-

Assessing Authority v. Gopi Nath and Sons [1992 Supp

(2) SCC 312] , Whirlpool Corpn. v. Registrar of Trade

Marks [(1998) 8 SCC 1] , Tin Plate Co. of India

Ltd. v. State of Bihar [(1998) 8 SCC 272] , Sheela

Devi v. Jaspal Singh [(1999) 1 SCC 209] and Punjab

National Bank v. O.C. Krishnan [(2001) 6 SCC 569].

47

14. In Union of India v. Guwahati Carbon Ltd. [(2012) 11 SCC

651] this Court has reiterated the aforesaid principle and

observed: (SCC p. 653, para 8)

“8. Before we discuss the correctness of the impugned

order, we intend to remind ourselves the observations

made by this Court in Munshi Ram v. Municipal Committee,

Chheharta [(1979) 3 SCC 83 : 1979 SCC (Tax) 205] . In the

said decision, this Court was pleased to observe that: (SCC

p. 88, para 23)

‘23. … [when] a revenue statute provides for a

person aggrieved by an assessment thereunder, a

particular remedy to be sought in a particular forum,

in a particular way, it must be sought in that forum

and in that manner, and all the other forums and

modes of seeking [remedy] are excluded.

15. Thus, while it can be said that this Court has recognised

some exceptions to the rule of alternative remedy i.e. where

the statutory authority has not acted in accordance with the

provisions of the enactment in question, or in defiance of the

fundamental principles of judicial procedure, or has resorted

to invoke the provisions which are repealed, or when an order

48

has been passed in total violation of the principles of natural

justice, the proposition laid down in Thansingh Nathmal

case [AIR 1964 SC 1419] , Titaghur Paper Mills case [Titaghur

Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 :

1983 SCC (Tax) 131] and other similar judgments that the

High Court will not entertain a petition under Article 226 of the

Constitution if an effective alternative remedy is available to

the aggrieved person or the statute under which the action

complained of has been taken itself contains a mechanism for

redressal of grievance still holds the field. Therefore, when a

statutory forum is created by law for redressal of grievances,

a writ petition should not be entertained ignoring the statutory

dispensation.

36. Exceptions have been carved out by the Hon’ble

Supreme Court where in spite of the aggrieved person

having an alternative remedy available to him, the writ

Court may intervene.

37. In Whirlpool Corporation vs. Registrar of Trade Marks,

Mumabi and others, (1998) 8 SCC 1, The Hon’ble Supreme

Court held that an alternative remedy will not operate as a

49

bar to the maintainability of a writ petition in at least four

contingencies, namely, where the writ petition has been

filed for the enforcement of any of the Fundamental Rights

or where there has been a violation of the principles of

natural justice or where the order or proceedings

challenged are wholly without jurisdiction or the vires of an

Act is challenged. This view has been reiterated by the

Hon’ble Supreme Court in a plethora of subsequent cases

and indeed in earlier cases also.

38. The writ petitioner argued that the notice of

assessment of tax and interest is without jurisdiction

because it is time barred. His argument is based on section

34 of the 2017 Regulation, which reads as follows:-

“34. (1) No assessment or re-assessment shall be made by the

Commissioner after the expiry of four years from—

(a) the end of the year comprising of one or more tax

periods for which the person furnished a return under

section 26 or section 28; or

50

(b) the date on which the Commissioner made an

assessment of tax for the tax period, whichever is the

earlier:

Provided that where the Commissioner has reason

to believe that tax was not paid by reason of

concealment, omission or failure to disclose fully

material particulars on the part of the person, the said

period shall stand extended to six years.

(2) Notwithstanding anything contained in sub-section

(1) the Commissioner may make an assessment of tax

within one year after the date of any decision of the

Appellate Tribunal or court where the assessment is

required to be made in consequence of, or to give effect

to, the decision of the Appellate Tribunal or court which

requires the re-assessment of the person.”

39. Learned counsel argued that the notice of assessment

having been issued on December 31, 2024, if one

calculates backward the financial years 2017-18, 2018-19

and 2019-20 would be beyond four years. The office of the

Commissioner did not have jurisdiction to assess or

51

reassess value added tax for the said three financial years.

Limitation is an issue bordering on the issue of jurisdiction.

Therefore, this writ petition will be maintainable in spite of

section 76 of the regulation providing the petitioner with an

alternative remedy in the form of statutory appeal.

40. I am unable to agree with learned counsel for the

petitioner. Firstly, limitation is ordinarily a mixed question

of fact and law. I am not to be understood as saying that

limitation can never be a pure question of law. If the facts

of a case are not in dispute, limitation may well be a pure

question of law. In such a case, the writ Court may still be

inclined to entertain a petition in spite of existence of an

alternative remedy.

41. However, generally speaking, limitation is a mixed

question of fact and law. There are authorities legion for

this proposition. I may refer to two of the very recent

decisions of the Hon’ble Supreme Court. The first is in the

case of P.Kumarakurubaran vs. P.Narayanan and

others, Civil Appeal No. 5622 of 2025 (arising from

SLP(C) NO.2549 of 2021). The judgment of the Supreme

52

Court is dated April 29, 2025. It was observed by the

Hon’ble Supreme Court that the issue of limitation is a

mixed question of facts and law for which the parties will

have to lead evidence. The second is in the case of Shri

Mukund Bhavan Trust and Ors versus Shrimant

Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle

and another, Civil Appeal No.14807 of 2024 (Arising

out of SLP (C) No.18977 of 2016..

42. In the present case, the petitioner submitted that it

duly filed returns under the VAT Regulation 2017 for the

four financial years in question. This has been denied by

the respondents in their affidavit-in-opposition. Copies of

returns have not been enclosed to the writ petition.

Therefore, the facts of the case, on the hinges of which the

issue of limitation has to be decided, are not admitted.

Hence, the issue of limitation, in my opinion, does not

partake the nature of a jurisdictional issue in the facts of

this case.

43. In my considered view, it cannot be said at this stage

that the impugned notices dated December 31, 2024, are

53

without jurisdiction and therefore, this writ petition is

maintainable notwithstanding availability of the appellate

remedy.

44. Secondly, having received the notices dated December

31,2024, the petitioner had two options open to it. It could

straightway approach the High Court in its writ jurisdiction

as it has done now contending that the notices are without

jurisdiction. Alternatively, it was open to it to file objection

to the notices in terms of section 74 of the Regulation. The

petitioner chose the second avenue. It filed a written

objection asking for a hearing. The hearing was held before

the Joint Commissioner. The Joint Commissioner by a

reasoned order dated July 22, 2025, overruled the

objection and upheld the two notices. Therefore, the

petitioner waived its rights, if any, to invoke the writ

jurisdiction of the High Court for challenging the impugned

notices and opted for the statutory avenue for challenging

such notices. Having been unsuccessful before the Joint

Commissioner, the petitioner cannot now be permitted to

invoke the writ jurisdiction to challenge the same notices.

54

45. In the course of hearing of this matter, it was

mentioned by learned counsel for the respondents that the

petitioner had, in fact, approached the writ court earlier.

The Court refused to interfere and relegated the petitioner

to the statutory avenue under section 74 of the Regulation

to file objection to the impugned notices. Although no such

court order is on record before me, even if that was the

case, still the petitioner would not be entitled to maintain

the present writ petition since the petitioner did not assail

such order before any higher forum but acted in terms

thereof.

46. Under challenge in this writ petition is also an order of

the Joint Commissioner dated July 22, 2025, rejecting the

petitioner’s objection to the impugned notices. It is

nobody’s case that said order suffers from jurisdictional

error. The order may be an erroneous order but that would

not entitle the petitioner to invoke the writ jurisdiction to

challenge that order, bypassing the statutory remedy of

appeal under section 76 of the Regulation.

55

47. Next, coming to the issue of breach of natural justice.

At the very beginning, I would like to quote paragraph 26 of

the decision of the Hon’ble Supreme Court in the case of

Swadeshi Cotton Mills vs. Union of India, 1981 (1) SCC

664.

“26. Well then, what is “natural justice”? The phrase is not

capable of a static and precise definition. It cannot be

imprisoned in the straight-jacket of a cast-iron formula.

Historically, “natural justice” has been used in a way “which

implies the existence of moral principles of self-evident and

unarguable truth”. In course of time, Judges nurtured in the

traditions of British jurisprudence, often invoked it in

conjunction with a reference to “equity and good conscience”.

Legal experts of earlier generations did not draw any

distinction between “natural justice” and “natural law”.

“Natural justice” was considered as “that part of natural law

which relates to the administration of justice”. Rules of

natural justice are not embodied rules. Being means to an end

and not an end in themselves, it is not possible to make an

exhaustive catalogue of such rules.”

56

48. Simply put, the principles of natural justice require

that nobody be condemned unheard. If the order of an

Authority is likely to have adverse civil consequences for a

citizen, that person should be granted an opportunity of

hearing before such order is passed. In most of the cases

what is required is a pre-decisional hearing. However, there

are cases galore where a post-decisional hearing may

suffice. This is often so in cases of action taken under

fiscal statutes. A taxing statute may provide for issuance of

notice imposing a tax burden/penalty on an assessee

without providing for a hearing prior to issuance of such

notice. But the statute may provide for an objection being

filed by the assessee to such notice and a full-fledged

hearing being given by the authority issuing such notice.

This would be post-decisional hearing but nonetheless

would pass the test of fairness. The assessee would have

full opportunity of assailing such notice and arguing why

such notice should be withdrawn or modified.

49. In the present case, I do not find any provision in the

Regulation requiring the office of the Commissioner to

57

grant an opportunity of hearing to the assessee prior to

issuing notices under sections 32 and 33 of the Regulation.

The said sections read as follows:

“32. (1) If any person—

(a) has not furnished returns required under this

Regulation by the prescribed date; or

(b) has furnished incomplete or incorrect returns; or

(c) has furnished a return which does not comply with

the requirements of this Regulation; or

(d) for any other reason the Commissioner is not

satisfied with the return furnished by a person,

the Commissioner may for reasons to be recorded in

writing assess or reassess to the best of his judgment

the amount of net tax due for a tax period or more than

one tax period by a single order so long as all such tax

periods are comprised in one year.

(2) If, upon the information which has come into his

possession, the Commissioner is satisfied that any

person who has been liable to pay tax under this

58

Regulation in respect of any period or periods, has

failed to get himself registered, the Commissioner may

for reasons to be recorded in writing, assess to the best

of his judgment the amount of net tax due for such tax

period or tax periods and all subsequent tax periods.

(3) Where the Commissioner has made an assessment

under this section, the Commissioner shall forthwith

serve on that person a notice of assessment of the

amount of any additional tax due for that tax period.

(4) Where the Commissioner has made an assessment

under this section and further tax is assessed as owed,

the amount of further tax assessed is due and payable

on the same date as the date on which the net tax for

the tax period was due.

33. (1) Where the Commissioner has reason to believe that a

liability to pay a penalty under this Regulation has

arisen, the Commissioner, after recording the reason in

writing, shall make and serve on the person a notice of

assessment of the penalty that is due under this

Regulation.

59

(2) The amount of any penalty assessed under this

section is due and payable on the date on which the

notice of assessment is served by the Commissioner.

(3) Any assessment made under this section shall be

without prejudice to prosecution for any offence under

this Regulation.”

50. However, section 74 of the Regulation provides an

opportunity to the assessee to file written objection to such

notices and participate in a hearing before the

Commissioner. This was the course of action adopted by

the present petitioner. The said section reads as follows:

“74. (1) Any person who is dissatisfied with—

(a) an assessment made under this Regulation (including an

assessment under section 33); or

(b) any other order or decision made under this Regulation,

may make an objection against such assessment, or order or

decision, as the case may be, to the Commissioner:

Provided that no objection may be made against a non-

appealable order as defined in section 79:

60

Provided further that no objection against an assessment

shall be entertained unless the amount of tax, interest or

penalty assessed that is not in dispute has been paid failing

which the objection shall be deemed to have not been filed:

Provided also that the Commissioner may, after giving to the

dealer an opportunity of being heard, may direct the dealer to

deposit an amount deemed reasonable, out of the amount

under dispute, before such objection is entertained:

Provided also that only one objection may be made by the

person against any assessment, decision or order:

Provided also that in the case of an objection to an amended

assessment, order, or decision, an objection may be made

only to the portion amended:

Provided also that no objection shall be made to the

Commissioner against an order made under section 84 or

section 85 if the Commissioner has not delegated his power

under the said sections to other Value Added Tax Authorities.

(2) A person who is aggrieved by the failure of the

Commissioner to reach a decision or issue any assessment or

61

order, or undertake any other procedure under this

Regulation, within six months after a request in writing was

served by the person, may make an objection against such

failure.

(3) An objection shall be in writing in the prescribed form and

shall state fully and in detail the grounds upon which the

objection is made.

(4) The objection shall be made—

(a) in the case of an objection made under sub-section

(1), within two months of the date of service of the

assessment, or order or decision, as the case may be; or

(b) in the case of an objection made under sub-section

(2), not earlier than six months and not later than eight

months after the written request was served by the

person:

Provided that where the Commissioner is satisfied that

the person was prevented for sufficient cause from

lodging the objection within the time specified, he may

accept an objection within a further period of two

months.

62

(5) The Commissioner shall conduct its proceedings by an

examination of the assessment, or order or decision, as the

case may be, the objection and any other document or

information as may be relevant:

Provided that where the person aggrieved, requests a hearing

in person, the person shall be afforded an opportunity to be

heard in person.

(6) Where a person has requested a hearing under sub-section

(5) and the person fails to attend the hearing at the time and

place stipulated, the Commissioner shall proceed and

determine the objection in the absence of the person.

(7) Within three months after the receipt of the objection, the

Commissioner shall either—

(a) accept the objection in whole or in part and take

appropriate action to give effect to the acceptance

(including the remission of any penalty assessed either

in whole or in part); or

(b) refuse the objection or the remainder of the objection,

as the case may be; and in either case, serve on the

63

person objecting, a notice in writing of the decision and

the reasons for it, including a statement of the evidence

on which it is based:

Provided that where the Commissioner within three

months of the making of the objection notifies the person

in writing, he may continue to consider the objection for

a further period of two months:

Provided further that the person may, in writing, request

the Commissioner to delay considering the objection for

a period of three months for the proper preparation of its

position, in which case the period of the adjournment

shall not be counted towards the period by which the

Commissioner shall reach his decision.

(8) Where the Commissioner has not notified the person of his

decision within the time specified under sub-section (7), the

person may serve a written notice requiring him to make a

decision within fifteen days.

(9) If the decision has not been made by the end of the period

of fifteen days after being given the notice referred to in sub-

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section (8), then, at the end of that period, the Commissioner

shall be deemed to have allowed the objection.

(10) (a) In case of revision of any order under this section or

any decision in objection is passed under this Regulation,

rules or notifications made thereunder, by any officer or

person subordinate to him, the Commissioner may, of his own

motion or upon information received by him, call for the record

of such order and examine whether—

(i) any turnover of sales has not been brought to tax or

has been brought to tax at lower rate, or has been

incorrectly classified, or any claim is incorrectly granted

or that the liability to tax is understated; or

(ii) any case, the order is erroneous, insofar as it is

prejudicial to the interest of revenue, and after

examination, the Commissioner may pass an order to

the best of his judgment, where necessary.

(b) (i) For the purpose of the examination and passing of

the order, the Commissioner may require, by service of

notice, the dealer to produce or cause to be produced

65

before him such books of account and other documents

or evidence as he thinks necessary for the purposes

aforesaid.

(ii) Notwithstanding anything to the contrary contained

in section 34, no order under this section shall be

passed after the expiry of four years from the end of the

year in which the order passed by the subordinate

officer has been served on the dealer.

(iii) Notwithstanding anything to the contrary contained

in section 34, where in respect of any order or part of

the said order passed by the subordinate officer, an

order has been passed by any authority hearing the

objection or any appellate authority including the

Tribunal or such order is pending for decision in

objection or in appeal, or an objection or an appeal is

filed, then, whether or not the issues involved in the

examination have been decided or raised in the

objection or the appeal, the Commissioner may, within

five years of the end of the year in which the said order

passed by the subordinate officer has been served on

the dealer, make a report to the said objection hearing

authority or the appellate authority including the

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Tribunal regarding his examination or the report or the

information received by him and the said appellate

authority including the Tribunal shall thereupon, after

giving the dealer a reasonable opportunity of being

heard, pass an order to the best of its judgment, where

necessary.

(c) If the Commissioner has initiated any proceeding

before an appropriate forum against an issue which is

decided against the revenue by an order of the Tribunal,

then the Commissioner may, in respect of any order,

other than the order which is the subject-matter of the

order of the Tribunal, call for the record, conduct an

examination as aforesaid, record his findings, call for

the said books of account and other evidence and pass

an order as provided for under this section as if the

issue was not so decided against the revenue, but shall

stay the recovery of the dues including the interest or

penalty, insofar as they relate to such issue until the

decision by the appropriate forum and after such

decision, may modify the order of revision, if necessary.

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(d) No proceedings under this section shall be

entertained on any application made by a dealer or a

person.

(e) Notwithstanding anything contained in any

judgment, decree or order of any court, the provisions of

this Regulation, other than sections 99 to 101, shall be

deemed to have come into force with effect from the 1st

day of July, 2017.

(11) (a) Notwithstanding anything to the contrary

contained in section 34, the Commissioner may, at any

time within four years from the end of the year in which

any order passed by him has been served, on his own

motion, rectify any mistake apparent on record and

shall within the said period or thereafter rectify any

such mistake which has been brought to his notice

within the said period, by any person affected by such

order.

(b) The provisions of sub-section (1) shall apply to the

rectification of a mistake by the appellate authority or

an objection hearing authority as they apply to the

rectification of mistake by the Commissioner:

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Provided that where any matter has been considered

and decided in any proceedings by way of objection or

appeal or review in relation to any order or part of an

order, the authority passing the order on objection,

appeal or review, may, notwithstanding anything

contained in this Regulation, rectify the order or part of

the order on any matter other than the matter which has

been so considered and decided.

(c) Where any such rectification has the effect of

reducing the amount of the tax or penalty or interest, the

Commissioner shall refund any amount due to such

person in accordance with the provisions.

(d) Where any such rectification has the effect of

enhancing the amount of the tax or penalty or interest or

reducing the amount of refund, the Commissioner shall

recover the amount due from such person in accordance

with the provisions.

(e) Save as provided in the foregoing sub-sections, and

subject to such rules as may be prescribed, any

assessment or re-assessment made or order passed

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under this Regulation or the rules made thereunder by

any person appointed under section 66 may be

reviewed by such person suo motu or upon an

application made in that behalf.”

51. That a post-decisional hearing may also be sufficient

compliance of the principles of natural justice in certain

cases would also appear from the following observations of

the Hon’ble Supreme Court of India in paragraph 44 of

Swadeshi Cotton Mills (Supra)

“44. In short, the general principle — as distinguished from an

absolute rule of uniform application — seems to be that where

a statute does not, in terms, exclude this rule of prior hearing

but contemplates a post-decisional hearing amounting to a full

review of the original order on merits, then such a statute

would be construed as excluding the audi alteram partem rule

at the pre-decisional stage. Conversely, if the statute

conferring the power is silent with regard to the giving of a

pre-decisional hearing to the person affected and the

administrative decision taken by the authority involves civil

consequences of a grave nature, and no full review or appeal

on merits against that decision is provided, courts will be

70

extremely reluctant to construe such a statute as excluding

the duty of affording even a minimal hearing shorn of all its

formal trappings and dilatory features at the pre-decisional

stage, unless, viewed pragmatically, it would paralyse the

administrative progress or frustrate the need for utmost

promptitude. In short, this rule of fair play “must not be

jettisoned save in very exceptional circumstances where

compulsive necessity so demands”. The court must make

every effort to salvage this cardinal rule to the maximum

extent possible, with situational modifications. But, to recall

the words of Bhagwati, J., the core of it must, however,

remain, namely, that the person affected must have

reasonable opportunity of being heard and the hearing must

be a genuine hearing and not an empty public relations

exercise.

52. I am therefore of the considered view that there has

been no breach of the principles of nature justice on the

part of the respondents in the present case. In any event,

the petitioner has not been able to demonstrate any

prejudice that it has suffered by not being granted a

hearing prior to issuance of the notice of assessment of tax

71

and interest and notice of penalty. It had full opportunity

of hearing before the Joint Commissioner under section 74

of the 2017 Regulation, albeit post-facto.

53. Therefore, I am unable to agree with the petitioner’s

contention that this writ petition is maintainable in spite of

there being an alternative remedy for the reason that

principles of natural justice have been violated by the

respondents in issuing the impugned notices.

54. The decision in M/s Tata Teleservices Limited vs.

The State of Chhattisgarh and others rendered by the

Hon’ble Supreme Court in Civil Appeal No.1993 of 2022

were on different facts. The assessee in that case had

straightway challenged the assessment order by way of a

writ petition, which is not the case here. In the present

case, as noted above, the writ petitioner chose to pursue

the statutory avenue of filing objection to the assessment

notice under Section 74 of the Regulation, thereby inviting

a decision on all the concerned issues from the

Commissioner. Having failed before the Commissioner the

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petitioner cannot now invoke the writ jurisdiction to

challenge the selfsame notice.

55. The decision of the Division Bench of this Court in

WP.TT No. 8 of 2025 (Jharna Saha vs. Joint

Commissioner Sales, Tax, Behala Charge and others)

was on West Bengal Value Added Tax Act. The provisions of

that Act are not identical with the provisions of the VAT

Regulation, 2017, which is in force in the Andaman and

Nicobar Islands. In any event, the reason why this decision

will not help the petitioner is the same reason for which the

decision in M/s Tata Teleservices Limited (supra) will not

be applicable to the facts of the case. For the same reason

again the decision in M/s Yogi Petroleum Limited (supra)

would not help the petitioner.

56. The ratio of the decision in the case of M/s Godrej

Sara Lee Ltd (Supra) is that cases where the controversy

is a purely legal one and it does not involve disputed

questions of fact but only questions of law, should be

decided by the High Court instead of dismissing the writ

petition on the ground of an alternative remedy being

73

available. In that case, a pure point of law was involved,

i.e., whether or not the revisional authority could exercise

suo motto power of revision of assessment order. In the

present case, as noted above, disputed questions of fact are

involved. Hence, the decision of M/s Godrej Sara Lee Ltd

(Supra) does not help the petitioner.

57. The other points urged by the petitioner clearly do not

pertain to the Commissioner’s jurisdiction to issue the

impugned notices or to the point of breach of natural

justice and are therefore, not relevant for the purpose of

deciding the issue of maintainability of this writ petition.

The petitioner will be at liberty to urge all points before the

Appellate Tribunal. It may be noted that the Andaman and

Nicobar Islands Value Added Tax Rules, 2020, were notified

on December 14, 2020. Rules 55A to 55C lay down the

procedure for filing of an appeal before the Appellate

Tribunal and for hearing of the appeal. It may also be noted

that the Appellate Tribunal is fully functional now.

58. A question that would naturally arise is whether it can

be said that a writ petition is not maintainable when on the

74

date of filing of the petition the alternative statutory remedy

was illusory by reason of the statutory appellate tribunal

being non-functional for want of presiding officer? Strictly

speaking, the answer should be in the negative since on the

date of filing the writ petition, the petitioner had no other

forum available to it. However, without going into the

question of maintainability or otherwise of WPA/345/2025,

I would like to put it in a different way. Since the Appellate

Tribunal is fully functional since August 19, 2025, even

though writ petitions were permitted to be filed prior to that

date, I would decline to issue writs of certiorari or

mandamus or prohibition in exercise of the high

prerogative writ jurisdiction under Article 226 of the

Constitution. Once the Tribunal started functioning a few

days after WPA/345/2025 was filed, the petitioner ought to

have approached the Tribunal by not pressing the writ

application.

59. Under attack by the petitioner is an action of the

respondent authorities under the VAT Regulation, 2017,

which also provides a remedy to the petitioner. It is a fiscal

75

statute providing for an appeal against the Commissioner’s

order. The Appellate Tribunal’s order is stated to be final

subject to a review by the Tribunal. The VAT Regulation is

a complete Code in itself. In my opinion, the writ court

should be very slow to intervene in respect of orders which

are appealable to the Tribunal. Tax disputes are also more

effectively and conveniently adjudicable before the Tribunal

rather than the writ Court.

60. I am conscious of the line of cases which say that

once a writ petition is taken on record and affidavits are

exchanged, at the final hearing the writ petition should not

be dismissed on the ground of availability of an alternative

remedy. However, those cases may not be relevant if at the

final hearing the writ court is of the opinion that because of

existence of disputed facts or for any other reason, the

alternative remedy should be resorted to by the writ

petitioner. I am of the considered view that this is a case

where the disputes between the parties which pertain to a

fiscal statute and to an extent are factual in nature, should

be adjudicated by the Appellate Tribunal. I do not think

76

that just because the writ petitioner was permitted to file

this petition in the absence of a functional Appellate

Tribunal, the same would give the petitioner any vested

right to have the disputes adjudicated by the writ court.

61. I therefore direct that the records of all those writ

petitions out of the bunch of 47 petitions which have been

heard, which were filed prior to August 19, 2025, be

transferred/transmitted to the Appellate Tribunal

constituted under section 73 of the VAT Regulation, 2017.

All those writ petitioners as well as the respondents will be

entitled to file additional pleadings before the Tribunal. The

Tribunal will decide those cases in accordance with law. In

respect of all those pre-August 19, 2025, cases, the

Tribunal will not insist on pre-deposit being made in terms

of section 76 of the VAT Regulation, 2017. The appeals will

be decided within the statutory framework in accordance

with the applicable laws, Rules and Regulations. The said

writ petitions will be treated as disposed of insofar as the

records of this Court are concerned.

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62. The records of the following writ petitions will be

transferred/ transmitted to the Appellate Tribunal.

(i) WPA/345/2025 (M/s. Seashell vs. The Lt.

Governor and Others).

(ii) WPA/391/2025 (Shri Praveen vs. The Lt.Govenor

and others)

(iii) WPA/392/2025 (Shri M/s Sinclairs Hotel

Limited vs. The Lt.Govenor and others).

(iv) WPA/393/2025 ( Smt Kalaiarasi vs. The Lt.

Governor and others].

(v) WPA/394/2025 (M/s. Aquays Hotels and

Resorts Pvt. Ltd. vs. The Lt. Governor and

Others).

(vi) WPA/395/2025 (Shri T. Kannan Vs. The Lt.

Governor and Others).

(vii) WPA/396/2025 (Shri. V. Ravichandran Vs. The

Lt. Governor and Others).

(viii) WPA/397/2025 (M/s. Hotel Sentinel Vs. The Lt.

Governor and Others).

78

(ix) WPA/398/2025 (Welcomehotel Bay Island, Unit

of ITC Hotel Ltd. Vs. The Lt. Governor and

Others).

(x) WPA/366/2025 (M/s. TSG Hotels and Resorts

vs. The Lieutenant Governor and Others).

(xi) WPA/367/2025 (Shri V. Karuppaiah Vs. The

Lieutenant Governor and Others).

(xii) WPA/368/2025 (M/s. TSG Aqua (TSG Bella Bay)

Vs. The Lieutenant Governor and Others).

(xiii) WPA/369/2025 (Shri K. V. Rama Rao Vs. The

Lieutenant Governor and Others).

(xiv) WPA/399/2025 (M/s. Oriental Filling Station Vs.

The Lt. Governor and Others).

(xv) WPA/400/2025 (M/s. Jadwet Trading Company

Vs. The Lt. Governor and Others).

(xvi) WPA/401/2025 (M/s. Royal Petroleum Vs. The

Lt. Governor and Others).

(xvii) WPA/418/2025 (M/s. Kamala Trading Vs. The

Lieutenant Governor and Others).

79

(xviii) WPA/420/2025 (M/s. Manoj Marketing Vs. The

Lt. Governor and Others).

(xix) WPA/370/2025 (M/s. Holiday Inn –vs. The

Lieutenant Governor and Others).

(xx) WPA/371/2025 (Smti. Usha Moorthy –vs- The

Lieutenant Governor and Others).

(xxi) WPA/372/2025 (M/s. Aparupa Sands Marina

Vs. The Lieutenant Governor and Others).

(xxii) WPA/373/2025 (M/s. Hotel Aparupa (A) Pvt.

Ltd. vs. The Lieutenant Governor and Others).

(xxiii) WPA/374/2025 (M/s. Southern Holdings and

Investments (Chennai) Pvt. Ltd Vs. The

Lieutenant Governor and Others).

(xxiv) WPA/375/2025 (Shri K. V. Narsimha Rao Vs.

The Lieutenant Governor and Others).

(xxv) WPA/381/2025 (M/s. Silver Sand Neil vs. The

Lieutenant Governor and Others).

(xxvi) WPA/383/2025 (Smti. K. Shobha vs. The

Lieutenant Governor and Others).

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(xxvii) WPA/384/2025 (M/s. C. S. Empire vs- The

Lieutenant Governor and Others).

(xxviii) WPA/385/2025 (M/s. Pearl Park Beach Resort

vs. The Lieutenant Governor and Others).

63. Insofar as the writ petitions filed on or after August

19, 2025, are concerned, the same shall stand dismissed

solely on the ground of availability of an alternative

statutory remedy. Those writ petitioners will be at liberty

to approach the Appellate Tribunal. If any question of

limitation/time-bar arises, the Tribunal shall decide the

issue taking into consideration the applicable provisions of

the Limitation Act, 1963, and in particular section 14

thereof as also the factum of pendency of the writ petitions

in this Court.

64. The following writ petitions stand dismissed.

(i) WPA/566/2025 (M/s. Hotel Arasi Vs. The Lt.

Governor and Others).

(ii) WPA/568/2025 (M/s. Medival Islander Inn Bar

Vs The Lt. Governor and Others).

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(iii) WPA/569/2025 (M/s. Hotel Sarvottam (A) Pvt.

Ltd. Vs. The Lt. Governor and Others).

(iv) WPA/570/2025 (M/s. Hotel Rajadeepam Vs The

Lieutenant Governor and Others).

(v) WPA/573/2025 (M/s. Whistling Wood Vs. The

Lieutenant Governor and Others).

(vi) WPA/574/2025 (M/s. Apt Bar and Restaurant

Vs. The Lieutenant Governor and Others).

(vii) WPA/575/2025 (M/s. Dharma Cool Bar Vs The

Lieutenant Governor and Others).

(viii) WPA/583/2025 (M/s. Hotel Raj Prakash Vs The

Lieutenant Governor and Others).

(ix) WPA/546/2025 (M/s. Annu Bar and Restaurant

vs. The Lt. Governor and Others).

(x) WPA/547/2025 (M/s. Pristine Beach Resort vs.

The Lt. Governor and Others).

(xi) WPA/549/2025 (M/s. Ashoka Bar and

Restaurant vs. The Lt. Governor and Others).

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(xii) WPA/550/2025 (M/s. B. R. B. Bar and

Restaurant Vs Lieutenant Governor and

Another).

(xiii) WPA/551/2025(M/s. Purna Pushpawalli Bar

and Restuarant Vs. Lieutenant Governor and

Another).

(xiv) WPA/552/2025(M/s. Stalin Bar and Restaurant

vs. The Lieutenant Governor and Others).

(xv) WPA/558/2025 (M/s Hotel A.T. Villa vs.The

Lieutenant Governor and others).

(xvi) WPA/562/2025 (M/s. Hotel Exel Bar and

Restaurant vs. The Lt. Governor and Others).

(xvii) WPA/563/2025 (M/s. Unique Bar and

Restaurant vs. The Lt. Governor and Others).

(xviii) WPA/564/2025 (M/s. G. International vs. The

Lt. Governor and Others).

(xix) WPA/565/2025 (M/s. G. M. S. Restaurant Vs

The Lt. Governor and Others).

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65. I clarify that I have not touched the merits of the

respective cases of the writ petitioners in the 47 writ

petitions which are being disposed of by this judgment and

order. The Appellate Tribunal is requested to decide the

transferred cases or any appeal(s) that may be preferred by

any or all of the writ petitioners whose petitions stand

dismissed by this order, without being influenced by any

observation in this judgment and order.

66. All the writ petitions are disposed of on the above

terms.

67. Parties to act on the server copy of this order

downloaded from the official website of this Court.

( Arijit Banerjee, J. )