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TMI Blog1958 (4) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... Sales Tax Act (No. XXIX of 1954) hereafter called the Act. Consequently, no sales tax could be charged on sales of these articles made by them. The Sales Tax Officer, Barmer, however, called on them to furnish returns of their turnover for the purpose of assessment of sales tax. They represented to the Sales Tax Officer that they were not liable to pay any sales tax on the articles prepared by them. The Sales Tax Officer, however, overruled their contention and assessed them on the gross turnover of their business. It seems that these articles are not the only articles in which Messrs Bansidhar Kanmal are dealing and their claim apparently was that the sales of these articles should not be taken into account in calculating their gross turnover. The Sales Tax Officer, however, rejected the contentions of the applicants of both cases and assessed them to sales tax. Consequently, the present applications were filed in this court. A preliminary objection has been taken on behalf of the State that this court should not interfere in its extraordinary jurisdiction at this stage as the applicants had an equally efficacious and convenient alternative remedy by way of appeal and revision un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certiorari is a discretionary writ and in a case like the one coming under the Income-tax Act where there are other remedies open to the assessee including the remedy by coming to the High Court on reference under the Act, there was no reason to interfere at an intermediate stage. We are of opinion that Ramniranjan Kedia's caseA.I.R. 1957 Raj, 210; 33 I.T.R. 812. applies with full force to the facts of this case. Here also the assessment order has been made by the Sales Tax Officer. Remedies by way of appeal, revision and reference to this Court are open to the applicant under the Act. We, therefore, see no reason why we should issue a writ of certiorari, which is a discretionary writ, at this stage, short-circuiting the procedure provided in the Act. If we were to permit this, it would only be a short step from here to permit writs of certiorari from judgments of trial courts in civil matters direct to this Court under Article 226 of the Constitution short-circuiting the procedure of appeals, second appeals and revisions provided in the Civil Procedure Code. We do not see, therefore, why we should intervene at this stage when it is open to the applicant to take advantage of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court must give him relief because his fundamental right is involved in the same way as he can insist, resting on his right under Article 32(1) that the Supreme Court should hear him, when he moves it for the enforcement of the rights conferred by Part III. We may in this connection refer to Romesh Thappar v. The State of Madras(1), where it was held that Article 32 does not merely confer power on the Supreme Court as Article 226 does on the High Courts to issue writs for the enforcement of the rights conferred by Part III. Article 32 provided a guaranteed remedy for the enforcement of those rights and this remedy is made a fundamental right by being included in Part III. The Supreme Court is thus constituted the protector and guarantor of fundamental rights and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights. It is by virtue therefore of the provisions in Article 32(1) that the Supreme Court intervenes whenever a case of infringement of a fundamental right is brought before it. The case of the High Court is different as is clear from Romesh Thappar's caseA.I.R. 1950 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven if full force is to be given to these observations, which appear, with all respect to be obiter, the question arises whether the mere fact that the Act provides that the tax has to be deposited before an appeal is filed makes the remedy so onerous as to make it an inadequate alternative remedy in every case. This aspect of the matter was not considered by the Supreme Court in Himmatlal's case [1954] 5 S.T.C. 115; A.I.R. 1954 S.C. 403. for the obvious reason that the point did not seriously arise in that case, as it was concerned with the vires of the enactment. We feel, however, that even if this principle is to be applied, it cannot be applied baldly in every case. Suppose that the tax imposed in a particular case is only Rs. 5. Can it be said that the law which requires the deposit of tax is so onerous in a case where the tax imposed is only Rs. 5 as to make the remedy under the law an inadequate alternative remedy? We feel that if this matter of the onerousness of the alternative remedy has to be gone into, the tax actually imposed has also to be taken into account along with the status and circumstances of the assessee before it can be said that the alternative remedy is so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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