TMI Blog2013 (10) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... nal. In such cases alone, the High Court concerned may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to scrutiny before a Division Bench of their respective High Courts. We may add that the Tribunals will, however, continue to act as the only Courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. - Following decision of L. Chandra Kumar –vs- Union of India & ors. [1997 (3) TMI 90 - SUPREME Court] - Decided against assessee. - W. P. No. 24939 (w) of 2012 - - - Dated:- 9-9-2013 - The Hon ble Justice Harish Tandon,JJ. For the Petitioner : Mr. Biswajit Bhattacharjee, Mr. Sushil Verma, Mr. C. Bhattacharya, Mr. Partha Basu For the Respondents : Mr. Abhratosh Majumdar, Mr. Soumitra Mukherjee JUDGMENT Harish Tandon, J. The order passed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority nor place the documentary evidence necessary to establish that the said turnover was not liable to any tax under the provisions of West Bengal VAT Act. In short, the petitioner says and submits that the whole issue was pre-judged by the Ld. Dy. CST and the petitioner has been subjected to this illegal tax demand without being heard. XI) The unilateral actions on the part of the assessing authority have caused tremendous prejudice to the Petitioner who has been dragged into this onerous litigation for no fault of his. The assessing officer grossly and flagrantly flouted the due process of law: (a) By not giving effective opportunity of being heard to the petitioner. (b) By not disclosing his basis that he intended to adopt to create such illegal demands against the petitioner i.e. his intention to treat the divisible contracts as turnkey or indivisible contract. (c) By not informing the petitioner about the BOI Report dated 23.6.12 or by not letting the Petitioner inspect the same or by not giving a copy of the same and seeking defense of the Petitioner to the findings that are contained in the BOI Report. (d) By not following the statutory procedure that require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates that the sales made under Section 6 (2) of the said Act could never be of the same goods in very same form. It does not emanate from the said assessment order that the notice under Section 46 of the Vat Act was served upon the petitioner which is one of the ground taken in the writ petition touching the plea of violation of principle of natural justice but there is a specific denial of the said fact in the affidavit-in-opposition by the respondents by asserting categorically that the show cause notice in Form 25 as prescribed under 46 of the Vat Act was issued and served upon the petitioner. It would be pertinent to record that the main thrust to the impugned assessment order on the ground of violation of principle of natural justice is the nonsupply of the report prepared and submitted by the BOI which forms the basis of the said assessment order. The respondents in the opposition also did not dispute the aforesaid fact and rather admitted that the said report of BOI was considered by the assessing authority. As indicated above, the challenge to the assessment order is basically founded on the non-supply of the report of the BOI which forms the very basis of the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... According to Mr. Bhattacharjee even prior to the judgment rendered in case of Whirlpool Corporation, the Apex Court in case of Rashid Ahmed vs- Municipal Board, Kairana reported in Air 1950 SC 163, K.S. Rashid And Son vs- Income Tax Investigation Commissioner reported in AIR 1954 SC 207, State of UP vs- Md. Nooh reported in AIR 1958 SC 86 and the constitution bench of the Supreme Court in case of A.V. Venkateswaran,Collector of Customs vs- Ramchand Sobhraj Wadhwani reported in AIR 1961 SC 1506 held that though the normal rule is that the existence of adequate alternative remedy may be one of the facet for invocation of the judicial review under Article 226 of the Constitution of India but the same does not operate as an absolute bar and the High Court can exercise the power of judicial review in an exceptional deserving cases where the authority is acting without jurisdiction or in flagrant violation of the principles of natural justice. Mr. Majumdar, the learned Advocate appearing for the respondents, however, submits that although the BOI report was considered by the assessing authority but the non-supply thereof could not be said to be in gross violation of the principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form of tribunal is on the ground of violation of principles of natural justice as alternative remedy, even if available, is not an absolute bar. The Apex Court in case of Rasid Ahmed and K.S. Rashid and Son; Case held that the existence of an adequate legal remedy is one of the factor to be taken into account while entertaining the writ petition under Article 226 of the Constitution of India but the same is not free from an exception. In case of Md. Nooh (supra), the Apex Court held that the exhaustion of alternative remedy is one of the facet of rule of policy convenience and discretion but the High Court can issue the writ of certiorari in a deserving and appropriate case. Two exceptions were laid down by the Apex Court in case of A.V. Venkateswaran (supra) to invoke the jurisdiction of High Court under Article 226 of the Constitution where the existence of alternative remedy is not exhaustive and not an inflexible rule; the High Court certainly have the discretion to entertain in an appropriate case despite existence of alternative remedy. Most illustrative decision in the above perspective rendered by the Supreme Court is in case of Whirlpool Corporation (supra) in the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedures or without jurisdiction or contrary to law. The matter could have been rested and the power of judicial review could have been invoked by this Court if the judgment of the constitutional bench rendered in case of L. Chandra Kumar is unnoticed. In L. Chandra Kumar (supra), the constitutional bench was considering the following broad issues: (1) Whether the power conferred upon Parliament or the State Legislatures, as the case may be, by sub-clause (d) of clause (2) of Article 323-A or by sub-clause (d) of clause (3) of Article 323-B of the Constitution, to totally exclude the jurisdiction of all courts , except that of of the Supreme Court under Article 136, in respect of disputes and complaints referred to in clause (1) of Article 323-A or with regard to all or any of the matters specified in clause (2) of Article 323-B, runs counter to the power of judicial review conferred on the High Courts under Articles 226/227 and on the Supreme Court under Article 32 of the Constitution? (2) Whether the Tribunals, constituted either under Article 323-A or under Article 323-B of the Constitution, possess the competence to test the constitutional validity of a statutory provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich ensure the independence of the Judges of the superior judiciary, are not available to the Judges of the subordinate judiciary or to those who man tribunals created by ordinary legislations. Consequently, Judges of the latter category can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation. We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded. The Apex Court was also considering the constitutional validity of the exclusion provisions contained in the various administrative Acts enacted under the aegis of the Article 323A and 323B of the Constitution of India and held the same to be unconstitutional. The bench found that the jurisdiction conferred upon the High Courts under Article 226 and 227 of the Constitution and upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese words: 93. Before moving on to other aspects, we may summarize our conclusions on the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional set up, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the High Court concerned may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5 (6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated. The West Bengal Taxation Tribunal is constituted in pursuance of Article 323B of the Constitution of India upon enacting the West Bengal Taxation Tribunal Act, 1987. Section 5 of the said Tribunal Act bestowed the Taxation Tribunal to exercise jurisdiction, powers and authority in relation to all matters of adjudication or concerning of any disputes, complaints or offences with respect to levy assessment and collection of enforcement of any tax under any specified State Act and all matters connected therewith or incidental thereto. Though Section 5 and 6 of the Taxation Tribunal Act excludes the jurisdiction of the High Court but the Apex Court in case of L.Chandra Kumar (supra) have declared the said exclusion clause to be unconstitutional and retained the power of the High Court under Article 226/227 of the Constitution of India but to be exercised by the Division Bench of the respective High Courts. The schedule appended to the Taxation Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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