TMI Blog1970 (12) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner, Hyderabad Division, issued a notice on 23rd December, 1966, under section 14(4)(c) and section 20 of the Act and the Rules made thereunder proposing to revise the assessment order mentioned supra. In reply to the said notice, the petitioner sent an elaborate letter on 30th April, 1967. Its contention was that the exemption granted by the assessing authority was correct. Another notice was given by the Deputy Commissioner on 17th May, 1967, explaining the position and trying to meet the points raised in the reply by the petitioner. The petitioner again gave a reply to the said notice on 8th June, 1967. It stuck to the objections which it had raised. It is at this stage that the Deputy Commissioner thought that no useful purpose would be served in entering into correspondence and then enquired into the merits of the case. He made the final order of reassessment on 27th June, 1967. By this order the Deputy Commissioner reached the conclusion that the assessing officer had previously wrongly considered that it was a case of works contract and had wrongly exempted the turnover from levy of tax. Rejecting the contentions raised by the petitioner before him, the Deputy Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was filed on 17th December, 1970, a day earlier when the cases were taken up for consideration that a reference is made to the said circular. The circular is dated 1st September, 1964, and Board's reference is No. 3682/64-1. It is unnecessary to reproduce the circular because its substance has already appeared in paragraph 13 of the petitioner's affidavit. In the counter in paragraph 5 there is a general denial of the fact that the revision was made at the behest of someone else. It is upon these facts that we have to consider whether the impugned orders are vitiated because of the abdication of the power by the Deputy Commissioner in favour of the instructions given by the Board of Revenue. Now it is beyond dispute that the essential characteristic of what is often called "natural justice" is put by Romans in two maxims: (1) Nemo judex in causa sua and (2) audi alteram Partem. We may put the same in two words, impartiality and fairness. Natural justice therefore requires not only that a person be heard but that he be given a fair hearing; that the Tribunal be not biased but impartial. If the party was not allowed to state his case, there would be nothing to stop oppression and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s here that the second aspect of surrendering discretion arises. Surrender of independent discretion in favour of the adoption of a policy pursued by a superior authority is that aspect. Authorities directly entrusted with statutory discretions, be they executive officers or members of distinct tribunals, are usually entitled and often are obliged to take into account consideration of public policy and in some context the policy of a Minister or of the Government or of a superior authority. On the whole it may be a relevant factor in weighing the relevant considerations in a given case. That this is so is seen from a decision of the Supreme Court in Purtabpur Co. v. Cane Commissioner, Bihar A.I.R. 1970 S.C. 1896. In that case, although it was observed that in the matter of exercise of power under rule 6(1), the State Government and the Cane Commissioner were concurrent authorities and their jurisdiction was co-ordinate and although it was found from the documents that the Chief Minister directed the Cane Commissioner to divide the reserved area into two portions and ultimately it was the Chief Minister who had passed the final order, as the order was issued in the name of the Can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own judgment on the facts of each case if that is what the statute intended. In such a case the point is not whether there was a biased hearing but whether there was any hearing at all. In a case where the Tribunal mechanically acted in pursuance of the policy, then it can very easily be said that there was no hearing at all. But in a case where although he keeps in view the policy, nevertheless in an impartial way considers the case on its own merits, it cannot legitimately be contended that it is a case where fair hearing was not given or that it in a biased judgment. If the present case is examined in the light of what is stated above, it would be clear that although the Board of Revenue in the said circular had invited the attention of the assessing authorities to the legal position in regard to the definition of works contract and that of the term "sale" it has not sought to impose its own decision in individual cases. It has left a larger discretion with the assessing authority in matters of reopening of the assessment. The circular categorically states that if it is found necessary or possible, then alone action in that direction can be taken. Thus the final decision of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is also seen that the Assessing Authority was by then aware of the reported relevant decisions also. In this connection it is worthwhile to refer to a decision of the Supreme Court in Commissioner of Police v. GordhandasA.I.R. 1952 S.C. 16. The Supreme Court, referring to the affidavit of the Commissioner of Police, observed that "within a month of the order, the Committee advised that the application should be granted. Accordingly, the Commissioner accorded the necessary permission by his letter dated 14116th July, 1947. There was no reference there to the recommendation of the Advisory Committee, and though they may have weighed, and rightly, with the Commissioner there was nothing on the face of the letter to indicate that the decision was not that of the Commissioner himself given in bonafide exercise of the discretion vested in him." In fact the Commissioner in his affidavit had admitted, "I was fully satisfied that the petitioner's application should be refused but that it was only at the instance of the Cinema Advisory Committee that I granted the said permission on 14th July, 1947." The Supreme Court further said: "That however, would not affect the validity of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of reassessment. In this connection, it is also pertinent to note that the original allegation in the writ petition was that the reassessment was opened by the direction given by the Board of Revenue. There was no allegation that the final order was made because of the circular. In the reply affidavit, which was filed only when the case was ripe for hearing and which did not provide an opportunity to the other side to rebut, what all is stated in that cannot be taken into account. Even if it is taken into account, it does not improve the case as stated by the petitioner originally. In this connection, it is relevant to note that the petitioner at no stage of the proceedings took any exception on the ground of bias on the part of the Deputy Commissioner. We are not satisfied that the petitioner was not aware of the circular issued by the Board of Revenue at the time when correspondence went on between them. The writ petition itself makes a reference in substance to the instructions issued by the Board of Revenue although there was no specific reference to the circular which was made subsequently. The petitioner carried on correspondence with the Deputy Commissioner and had a full ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore they hear and dispose of the appeals, it will not be proper for the High Court to go into the questions of fact as well as law only to facilitate the disposal of the cases without being required to pay the tax. The Supreme Court has been deprecating and we have also had occasions to make observation to the same effect that the petitioners should not ordinarily be allowed to circumvent the statutory remedies available to them under the taxation law. It is for the petitioner to exhaust all the remedies available to it. Merely because under the statute it may be required to pay the tax before it is heard in the appeal, it would not be possible for this court to interfere under article 226 of the Constitution unless of course the objections raised go to the very root of the jurisdiction, such as the one with which we have dealt with. Since these petitions raise objections relating to the facts and the questions of law raised in the appeals, we do not think it proper to make any observation in that behalf or decide them here. It is open to the petitioner to raise these and other grounds available to it before the Appellate Tribunal and we have no reason to suppose that the Appellat ..... 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