TMI Blog1957 (11) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the 29th November, 1956, asking to be excused from paying or depositing the sum of Rs. 29,458-11-6 as the additional tax, no step was taken by the applicant within any reasonable time either by answering the demand of the 3rd November, 1956, or by coming to this Court. The Commercial Tax Officer informed the applicant that realisation could not be stayed unless directed by the Assistant Commissioner under rule 80(B) of the Act. Six days thereafter, the applicant moved this Court on the 18th December, 1956, and obtained the Rule. The Rule gave an interim stay upon the applicant furnishing security, but the applicant did not furnish security and, therefore, did not avail of the interim order staying the realisation of tax granted by the Rule. In the meantime the time to file an appeal under section 20 of the Act expired on the 3rd January, 1957, while the Rule was pending. The order of assessment is challenged in paragraph 20 of the petition. The grounds are stated in its sub-paragraphs (a), (b), (c), (d), (e), (f), (g), (h), (i) and (j). Learned counsel's contention on behalf of the applicant is threefold. He says, first, that there is no statutory authority for an appeal bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed. "Prescribed" in this Act means "prescribed by Rules made under the Act". This provision is followed by section 20 of the Act dealing with appeal, revision and review. Section 20 provides that any dealer may in the prescribed manner appeal to the prescribed authority against any assessment within 60 days or such further period as may be allowed by the Commissioner for cause shown to his satisfaction from the receipt of a notice issued under section 11 (3) in respect thereof, provided that no appeal shall be entertained by the said authority unless he is satisfied that such amount of tax as the appellant may admit to be due from him has been paid. The appellate authority under this section can set aside the assessment and direct the assessing authority to make a fresh assessment after such further enquiry as may be ordered or the appellate authority can confirm, reduce, enhance or annul the assessment. Amplest and most complete remedy is given under section 20 of the Act to any aggrieved dealer. This provision is followed by section 21 of the Act providing for statement of a case to the High Court. Section 21A gives power to the Commissioner or any person appointed to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellate authority and the authority appealed against are the same. Were the order of the Commercial Tax Officer to be regarded as the order of the Commissioner himself, a view which I consider untenable, even then the appeal, in that view, would be to the Board of Revenue. I am, therefore, satisfied that the statutory provision and the Rules for appeal and the division of work under the Act between the Commissioner, the Assistant Commissioner and the Commercial Tax Officer with the Board of Revenue working as a final Court of Appeal are intra vires the Statute. I therefore hold that rule 74 is valid under the Statute. It was then argued that the existence of an alternative remedy by way of an appeal under section 20 of the Act is no bar to the applicant seeking relief under Article 226 of the Constitution. This argument has been such an over-worked branch of Indian Constitutional Jurisprudence that I hesitate to add to its weight by adding a further decision of my own. Many judicial voices have spoken on this subject, some taking the view that alternative remedy is a bar, and others taking the view that it is not a bar, while the better opinion is said to be that it all depe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that declaration certificates were produced in proof of the claim under the proviso to section 5(2)(a)(ii) of the Act. The assessing officer has also said that he has examined the claim. He has disallowed the claim for Rs. 6,48,648. He gives his reasons. He says that the dealers whose names he mentions showed transactions abnormally large having regard to the other transactions of the applicant with registered dealers. His second reason was that all these transactions, although so large, were made in cash only which appeared to be against normal trade practice. His third reason is that many of these dealers are what he calls the "left dealers" and not "living dealers", by which I gather the authority wants to say that the dealers who had ceased to do business are called "left" and who continue to do business are called "living". It is also said in the assessment order that the signatures are different and that the persons signing these declaration forms in some cases do not even give the status of the persons signing them. The Commercial Tax Officer came to the conclusion that "The only judicious conclusion that can be arrived at from a reading of all the above facts is tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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