TMI Blog2014 (5) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... e Judge do not warrant interference. Raising of new grounds in a Writ appeal - Writ Court is a Court of Record – Held that:- Merely based upon an additional ground is raised at the time of hearing the appeal filed this Court cannot accept the contention that the request made by the learned counsel for assessee was only for the purpose of getting orders to file Writ Appeals - In fact a perusal of the orders passed by the learned Single Judge would clearly show that specific directions have been given for the return of the original orders impugned passed by AO - Further, such a contention cannot be raised and decided before this Court as the appellant for the reason known to it has not chosen to file any review – Therefore, no reason is found to interfere with the orders passed by the learned Single Judge – Therefore, these Writ Appeals are dismissed - Consequently, connected M.Ps.(MD) No.1, 1, 1 and 1 of 2011 are dismissed – Decided against Assessee. - W.A(MD)No.336 of 2011, W.A(MD)No.337 of 2011, W.A(MD)No.338 of 2011, W.A(MD)No.339 of 2011 and M.P.(MD) No.1 of 2011 - - - Dated:- 23-8-2011 - P. Jyothimani And M. M. Sundresh,JJ. For the Appellant : Shri. Venkataraman Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment for the period from 2007-2008 to 2010-2011. 5.2. The assessee contended before the learned Single Judge that the principle of natural justice has been violated in as much as the request of the assessee for further hearing was not granted. As the earlier order of assessment was set aside, the Assessing Officer ought to have initiated fresh proceedings instead of merely hearing the assessee in person. The alternative remedy is not a bar and the assessee has in fact charged only 4% tax towards sale of Concrete Sleepers and therefore, it cannot be asked to pay more. It has been further stated that the objections were not considered properly and no reasons have been assigned and the Assessing Officer has confirmed the proposals merely based upon certain clarifications, which were not applicable to the case on hand. 5.3. The Writ Petitions have been dismissed by the learned Single Judge by holding that the earlier Writ Petitions have been allowed only on the ground of want of personal hearing and therefore, there is no necessity to redo the entire exercise. The assessee having already submitted its objections and it having been heard as per the orders of this Court, it ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, it is submitted that the Writ Appeals will have to be allowed. 7. In support of his contentions, the learned Senior Counsel has relied number of judgments and some of them referred to hereunder: (i) Sales Tax Officer v. Hanuman Prasad - 19 STC 87. (ii) Filterco v. Commr. of Sales Tax - 61 STC 318. (iii) Commr. of Sales Tax, U.P. v. Indra Industries - 122 STC 100. (iv) Tin Box Company v. C.I.T. - 249 ITR 216. (v) J.T. (India) Exports v. U.O.I. (Delhi) (F.B.) - 257 ITR 269. (vi) Cemento Corpn. ltd. v. Collector Central Excise - 129 STC 313. 8. Submissions of the Respondent: Per contra, the learned Additional Government Pleader appearing for the respondent submitted that the assessee has not raised the contentions in the Writ Petitions, which are raised in these Writ Appeals. Therefore, it is not open to the assessee to raise them at this stage. Another round of Writ Petitions were also filed during the pendency of the assessment proceedings contending that before passing final orders of assessment, fresh tax assessment notice will have to be given and the said contention was rejected by this Court. The judgments and circulars relied upon by the assessee are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate authority. 10. Alternative remedy in fiscal matters: The power under Article 226 of the Constitution of India is both extra-ordinary and discretionary in nature. When a statute specifically provides for an appeal by the legislature, then such a remedy cannot be bye-passed for a mere asking. This Court cannot act as a substitute for an appellate authority constituted under the statute. Such a self-imposed restriction has to be followed more particularly in a fiscal Statute. The appellate authority constituted is well versed in the field of taxation and therefore, this Court should desist itself from exercising its power under Article 226 of the Constitution of India. 11. Considering the very same issue, it has been held in Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement another, 2010-4- L.W.1 in the following manner: "34. When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go-by by a litigant for invok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 6 C.B. (NS) 336 at page 356 in the following passage: 'There are three classes of cases in which a liability may be established founded upon a statute. ? But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. ? The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.' The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. (1919) AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. (1935) AC 532 and Secretary of State v. Mask and Co. AIR 1940 PC 105 = (1940)52 L.W.1. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine." 39. In this case, liability of the appellant is not created under any common law principle but, it is clearl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the appeals. This ground has been raised only during the course of arguments when we expressed our inability to decide the appeals on merit and hence, it is a mere after thought. Absolutely, no effort has been made to go before the learned Single Judge and get the order reviewed. It is trite law that a statement of fact recorded by a Court in the presence of parties and counsels will have to be accepted as true. Therefore, merely based upon an additional ground is raised at the time of hearing the appeal filed we cannot accept the contention that the request made by the learned counsel for the appellant was only for the purpose of getting orders to file Writ Appeals. In fact a perusal of the orders passed by the learned Single Judge would clearly show that specific directions have been given for the return of the original orders impugned passed by the Assessing Officer. Further, as discussed above, such a contention cannot be raised and decided before this Court as the appellant for the reason known to it has not chosen to file any review. In this connection we deem it proper to refer to the following passage of the decision of the Hon'ble Apex Court in State of Maharashtra v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n R v. Mellor (1858) 7 Cox CC 454 Martin, B. was reported to have said: "We must consider the statement of the learned Judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity." 5. In King-Emperor v. Barendra Kumar Ghose (1924) 28 Cal WN 170 : (AIR 1924 Cal 257) (FB) Page, J. said: "... these proceedings emphasise the importance of rigidly maintaining the rule that a statement by a learned Judge as to what took place during the course of a trial before him is final and decisive : It is not to be criticized or circumvented; much less is it to be exposed to animadversion." 6. In Sarat Chandra Maiti v. Bibhabati Debi (1921) 34 Cal LJ 302 : (AIR 1921 Cal 584), Sir Asutosh Mookerjee explained what had to be done: "... It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made, the most convenient and satisfactory course to follow, wherever practicable, is to apply to the Judge without delay and ask for rectification or review of the judgment. 7. So the Judges' record is co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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