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Dr. Sanjiv Agarwal By: Dr. Sanjiv Agarwal
September 16, 2023
All Articles by: Dr. Sanjiv Agarwal       View Profile
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Appeals and Writs

In any tax law, there could be disputes in relation to various aspects such as:

  • Constitutional issues
  • Jurisdictional issues
  • Law not clear/Interpretational issues
  • Tax Disputes- rate/classification/valuation/ITC etc.
  • Contravention of statutory provisions
  • Imposition of penalties

What is an appeal?

  • Any appeal under any law is an application to a higher court for a reversal or modification the decision of a lower court. Appeals arise when there are any legal disputes.
  • Disputes–owing to obligations under law:
  • Tax related
  • Procedural

What is a writ?

  • A formal order issued by a Court.
  • Any order, warrant, direction, and so on, issued by the Supreme Court or High Court is called a Writ.
  • Writ petition can be filed in the Supreme Court (Article 32 of the Constitution) and High Court (Article 226 of the Constitution) of India when fundamental rights are violated.
  • High court (Article 226) can also be invoked for violation of any Constitutional right.

Types of Writs

Writs can be of following types:

  • Habeas Corpus- To produce the body. Issued in case of illegal detention of a person.
  • Mandamus- “we command” or “we order”. Issued by Court to a public authority or lower court to perform a public or statutory duty.
  • Certiorari- Quash an order passed by an inferior court.
  • Prohibition- Prohibit lower courts from doing an act against natural justice or outside their authority.
  • Quo Warranto- To stop a person or restrain him from holding office that he has no authority to hold.

General Principles on Writs

Following points are important to note in relation to writs:

  • Writs may be maintainable or non-maintainable.
  • Writs may be admitted, disposed of with direction or dismissed
  • Court cannot entertain a writ petition merely because petitioner is aggrieved with any order of authorities unless the order is shown to be either non-speaking/unreasoned or without jurisdiction or without jurisdiction or vitiated by non-observance of principles of natural justice or by fraud or actuated by mala fides.

Thus, while a writ rules to address any pertinent issue by the High Court or Supreme Court on violation of any rights or seeking direction to any authority for prohibition, production, command, restraints, injunctions or quashing of any order, an appeal is to seek remedy against any impugned order by the aggrieved person. In case of appeal, there may be various appellate forums besides courts like Appellate Authority, Appellate Tribunal etc. On the other hand, a writ petition can be filed only before a court of law or Supreme Court.

In M/S GODREJ SARA LEE LTD. VERSUS THE EXCISE AND TAXATION OFFICERCUM- ASSESSING AUTHORITY & ORS. - 2023 (2) TMI 64 - SUPREME COURT, it was held that the Revisional Authority might have been justified in exercising suo motu power to revise the order of the Assessing Authority had the decision of the Tribunal been set aside or its operation stayed by a competent Court. So long it is not disputed that the Tribunal’s decision, having regard to the framework of classification of products/tax liability then existing, continues to remain operative and such framework too continues to remain operative when the impugned revisional orders were made, the Revisional Authority was left with no other choice but to follow the decision of the Tribunal without any reservation. Unless the discipline of adhering to decisions made by the higher authorities is maintained, there would be utter chaos in administration of tax laws apart from undue harassment to assesses. The appeal was, therefore allowed in favour of assessee.


By: Dr. Sanjiv Agarwal - September 16, 2023



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