TMI Blog2008 (10) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... ot interfere with the action of the statutory authorities until it has completed its own action or else has clearly exceeded its jurisdiction. We hasten to add, the exhaustion doctrine is not inflexible and when the reasons supporting the doctrine are found inapplicable, the doctrine should not be blindly applied. In view of the above, the learned single judge has not committed any error, whatsoever, which would call for our interference. Accordingly, the writ appeal requires to be rejected and it is rejected, without reference to the respondents. - W.A. No. 2000 of 2008 - - - Dated:- 6-10-2008 - DATTU H.T. C.J. AND THOMAS P. JOSEPH , JJ. ORDER:- K.M. JOSEPH J. The petitioner challenges exhibits P4 and P7 and seeks a direction to the first respondent to advert to various grounds urged by the petitioner in replies dated September 1, 2008 (exhibit P6) and August 28, 2008 (exhibit P5) and afford the petitioner adequate opportunity to substantiate its contentions. A further direction is sought to the first respondent to absolve the petitioner from the duty to produce the third parties for cross-examination before him on September 9, 2008 as per exhibit P7. The petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, he contends. Lastly, he would contend that 140 pay-in slips were forwarded to the petitioner by exhibit P7. Exhibit P7 is dated September 1, 2008 and the petitioner is given time till September 9, 2008 and he submits that the time is hardly sufficient having regard to the volume of the documents. Learned Government Pleader points out that this is a matter pending from 2006 and on one or other way the matter is being adjourned and this is the 7th writ petition filed. Section 53 of the KGST Act undoubtedly provides power to summon witnesses and cause production of documents which powers are conferred on a court by the Code of Civil Procedure. It is specifically provided that the power of summoning and enforcing attendance of any person and examining him on oath or affirmation is available to the assessing authority. I need only say that there is authority with the assessing authority, such powers as are conferred on it under section 53 of the KGST Act. I also feel that a month's time can be granted in the matter. Accordingly, it is directed that the proceedings pursuant to exhibit P7 shall stand deferred for a period of one month from today so as to disabuse the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s we have already noticed, the learned single judge has rejected the writ petition. It is the correctness or otherwise of the said order that is the subject-matter of this writ appeal. Sri Chandrasekharan, learned Senior Counsel would contend, that, the appellant is an assessee on the files of the Assistant Commissioner (Asst.), Special Circle, Thrissur, who is an officer higher grade than the officer who has initiated penalty proceedings under section 45A of the KGST Act and the assessments for the assessment years 2000-01 to 2004-05 are pending before the assessing authority and the assessing authority alone can make assessment and impose penalty, if any. Secondly, the learned counsel would contend, even before the final assessment could be completed, his power of assessment cannot be usurped by the Intelligence Officer who has initiated proceedings under section 45A of the Act, by taking decision on the correctness or otherwise of form 18 declarations. These are the only two submissions of the learned Senior Counsel at the time of hearing the appeal for admission , though several other grounds are taken in the memorandum of writ appeal filed. Chapter V of the Act provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an opportunity of being heard in the matter. The section commences with a non obstante clause. It says, that notwithstanding anything contained in section 46 of the Act, the assessing authority or the Appellate Assistant Commissioner, if he is satisfied that any person who has committed any offences specified under clauses (a) to (h), may direct such person to pay penalty not exceeding twice the amount of sales tax or other amount evaded or sought to be evaded, where it is practicable to quantify the evasion of tax or an amount not exceeding ten thousand rupees in every other case. Explanation I appended to section casts the burden on the dealer that he is not liable to the penalty under section 45A of the Act. Explanation II appended to the section defines the meaning of the expression assessing authority . It is an inclusive definition. In view of this Explanation, assessing authority includes any officer not below the rank of the Sales Tax Officer specified by the Government in this behalf by issuing a notification in the official gazette. It is not in dispute nor it can be disputed that the Intelligence Officer is also treated as an assessing officer for the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before a superior officer, it is not a bar for the intelligence officer, who has been authorised by the Government by issuing a notification in the Gazette to initiate and complete the proceedings under section 45A of the Act. We are only at the stage of show-cause notices issued by the first respondent. In our opinion, the writ court can entertain a petition, if for any reason, the authority who has issued the notice has no competence to issue such notice or the notice issued is contrary to the statutory provisions, etc. These grounds are neither urged nor argued by the writ petitioner. Under the rule requiring exhaustion of remedies provided under the Act, prior to judicial review by this court, a party may not ask a court to rule on an adverse decision of a statutory authority until he has availed himself of all possible remedies provided under the statute itself. The major purpose of exhaustion doctrine is to prevent the courts from interfering with the administrative process by statutory authorities until they have reached a conclusion. The Supreme Court has stated the reasons why it is desirable to the writ court not to disturb statutory proceedings. Because taxing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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