TMI Blog2008 (8) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... en taken by the assessing officer, that does not render the order without jurisdiction. Unless a case falls under the exceptions highlighted by the Supreme Court in the case of A.V. Venkateswaran [1961 (4) TMI 83 - SUPREME COURT OF INDIA] which the present case does not, we are afraid there may not be any justification in bypassing alternative remedy provided in statute. In this view of the matter, the decision relied upon by the counsel for petitioner in the case of Mafatlal Industries Ltd. [1996 (12) TMI 50 - SUPREME COURT OF INDIA] has no application to the present fact-situation. We refrain from making any observation about the correctness of the view taken by the assessing officer in the matter and the dismissal of these writ petitions by us must not be taken as an expression of opinion by us on the merits of the assessment orders as in our view, the correctness of the orders has to be examined and considered in the statutory remedy provided under the Act, 2005. W.P. dismissed. - - - - - Dated:- 22-8-2008 - LODHA R.M. C.J. AND KISHORE K. MANDAL , JJ. These three writ petitions are by one assessee, namely, Jaiswal Soap Factory. Save and except that the assessment ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said remedy is not rendered onerous. In this regard, he referred to a Constitution Bench decision of the Supreme Court in the case of Thansingh Nathmal v. Superintendent of Taxes [1964] 15 STC 468; AIR 1964 SC 1419. He would submit that all contentions challenging the assessment orders must be raised in statutory appeal. We reflected over the matter and gave a thoughtful consideration to rival contentions. The petitioner is a manufacturer of hand-made soap. It sells them under the brand names of Chasma Gola , Teer Gola and Jaso Super Soap . According to the petitioner, it had applied for registration of Chasma Gola Sabun for registration as a trade mark before the Registrar of Trade Mark, Trade Marks Registry, Bombay in the year 1984; the registration was granted and that was renewed and kept alive up to March, 1996. As on April 7, 2007, the petitioner's case is that Chasma Gola Brand did not have any trade mark registration. The other two brands had never ever any registration. In writ petition, C.W.J.C. No. 12457 of 2008, the order of assessment is for the period of third quarter of the assessment year 2006-07 and in the writ petition, C.W.J.C. No. 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout giving reasonable opportunity of hearing to the appellant as also the authority whose order has been appealed against. Further appeal is provided to the Tribunal under section 73, that reads, thus: 73. Appeal to Tribunal. (1) Subject to such Rules as may be made by the State Government, any of the authorities mentioned in section 10 or any person aggrieved by an order made by the Deputy Commissioner or Joint Commissioner under section 72 or the Commissioner under section 74 or section 77, may prefer an appeal to the Tribunal. (2) Where an appeal is preferred by a dealer, such appeal shall not be entertained by the Tribunal unless such dealer has deposited with the Tribunal in the manner specified by it, twenty-five per cent. of the amount in dispute: Provided that the Tribunal may, for reasons to be recorded in writing, waive or reduce the amount required to be deposited under this section. (3) Every application for appeal under this section shall be filed within ninety days of the communication of the order which is sought to be appealed, but were the Tribunal is satisfied that the applicant has sufficient cause for not applying within time, it may condone th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of law so formulated or involved and deliver such judgment thereon containing the grounds on which such decision is founded and may award such costs as it deems fit. (b) The High Court may determine any issue which (1) has not been determined by the Tribunal, or (2) has been wrongly determined by the Tribunal, by reason of a decision on such question of law as is referred to in sub-section (1). (6) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) relating to appeals to High Court, shall as far as may, be apply in the case of appeals under this section. Besides the aforesaid remedy of two tier-appeal as noticed above, an aggrieved person has remedy by way of miscellaneous revision and revision under sections 73A and 74. Sections 73A and 74 read, thus: 73A. Miscellaneous revision. Subject to the provisions of section 73, any order, other than an order passed by the Commissioner or orders against which an appeal has been provided under section 72, passed under this Act or the Rules made thereunder may, on application, be revised: (1) by the Joint Commissioner (Administration), if the said order has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble by such person or dealer in respect of any particular sale or purchase, or if tax is payable, the rate thereof, or (f) input tax credit can be claimed on any particular transaction of purchase and if it can be claimed, what are the conditions and restrictions subject to which such input tax credit can be claimed, or (g) the order passed under sub-section (2) of section 25 is just and proper, or (h) any other question involving interpretation of any provisions of the Act, the Commissioner shall, subject to such Rules as may be made, make an order determining such question. Explanation: For the purposes of this sub-section, the prescribed authority shall be deemed to have commenced assessment of the dealer under section 27 or section 28 or section 29 or section 30 or section 31 or section 32 or section 33, when the dealer is served with any notice by the prescribed authority under the said sections. (2) The Commissioner may direct that the determination shall not affect the liability of any person under this Act, as respect any sale or purchase effected prior to the determination or such date as he may specify. (3) If any such question arises from any order alre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tunity to the importer to be heard, so as to be in violation of the principles of natural justice. The learned Solicitor-General questioned the correctness of the reasoning of the learned Chief Justice in condoning the conduct of the respondent in not moving the Government in revision by taking into account the time that had elapsed between the date of the impugned order and that on which the appeal was heard. The submission was that if this was a proper test, the rule as to a petitioner under article 226 having to exhaust his remedies before he approached the court would be practically a dead letter because in most cases by the date the petition comes on for hearing, the time for appealing or for applying in revision to the Departmental authorities would have lapsed. 9.. We see considerable force in the argument of the learned Solicitor-General. We must, however, point out that the rule that the party who applies for the issue of a high prerogative writ should, before he approaches the court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact that the aggrieved party had other adequate legal remedies.' After referring to a few cases in which the existence of an alternative remedy had been held not to bar the issue of a prerogative writ, the learned Chief Justice added: 'It has also been held that a litigant who has lost his right of appeal or has failed to perfect an appeal by no fault of his own may in a proper case obtain a review by certiorari.' In the result this court held that the existence of other legal remedies was not per se a bar to the issue of a writ of certiorari and that the court was not bound to relegate the petitioner to the other legal remedies available to him. The Supreme Court, thus, held that existence of an alternative remedy by itself does not operate as a bar to maintain a petition under article 226 in two exceptional situation, namely; (i) where there is complete lack of jurisdiction in the officer or authority to take the action impugned; and (ii) where the impugned order has been passed in violation of principles of natural justice. The present case does not make out any of the two exceptions, which may justify bypassing the statutory remedy. That the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the Commissioner of Sales Tax was clearly binding on the assessing authority under section 42B(2) and although technically it would have been open to the appellants to urge their contentions before the appellate authority, namely, the Appellate Assistant Commissioner, that would be a mere exercise in futility when a superior officer, namely, the Commissioner, has already passed a well-considered order in the exercise of his statutory jurisdiction under sub-section (1) of section 42B of the Act holding that 21 varieties of the compressed woollen felt manufactured by the appellants are not eligible for exemption under entry 6 of Schedule I of the Act. Further section 38(3) of the Act requires that a substantial portion of the tax has to be deposited before an appeal or revision can be filed. In such circumstances we consider that the High Court ought to have considered and pronounced upon the merits of the contentions raised by the parties and the summary dismissal of the writ petition was not justified. In such a situation, although we would have, ordinarily, set aside the judgment of the High Court and remitted the case to that court for fresh disposal, we consider that in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not by assuming jurisdiction under article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another Tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party apply to it to seek resort to the machinery so set up. Having already noticed that the alternative remedy provided in the statute is not unduly onerous and that neither the assessing officer lacked jurisdiction in passing the impugned assessment orders nor these orders have been passed in breach of principles of natural justice, we find no justification in invoking high prerogative jurisdiction under article 226 bypassing the statutory remedy of appeal and revision. We find ourselves unable to accept the submission of the counsel for the petitioner that since error of law has been committed by the assessing officer in holding that the soaps sold by the petitioner are registered under the Trade Marks Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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