TMI Blog2014 (7) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... n erroneous exercise of jurisdiction but does not disclose an assumption of jurisdiction where there is none. Where a statute confers an alternative remedy, power under article 226 of the Constitution may be exercised if the impugned order discloses an assumption of jurisdiction, where there is none. Where, however, the impugned order, prima facie, discloses an erroneous exercise of jurisdiction, the party aggrieved would be required to approach the appellate forum. The petitioner's case pertains to an erroneous exercise of jurisdiction, namely, exigibility to sales tax of 'slump sale', applicability of the Full Bench judgment of the Andhra Pradesh High Court and legality of the penalty and, therefore, can be validly urged before the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the State of Punjab from its principal place of business located at SCF 63, Phase 3B-2, Mohali. It is registered both under the Punjab Value Added Tax Act, 2006 (in short, the PVAT Act ) and the CST Act. It has been regularly filing returns as prescribed under the statute. The petitioner having effected supply and sale inter-State transaction under the CST Act to the clients, reported the turnover vide form 1 and claimed exemption from levy of tax being transit sales as well as supported by C forms and E1 certificates issued by clients/outstation vendors, respectively. The assessing authority however, sought to undertake an exercise of conducting assessment invoking section 29(2) of the PVAT Act and directed the petitioner to appear on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Gannon Dunkerley Co. v. State of Rajasthan [1993] 88 STC 204 (SC) and Bharat Sanchar Nigam Ltd. v. Union of India [2006] 3 VST 95 (SC); [2006] 145 STC 91 (SC); [2006] 282 ITR 273 (SC); [2006] 6 RC 276, it was submitted that the assessing authority had exceeded its jurisdiction in framing the assessment for the assessment year in question. The following are the broad principles when a writ petition can be entertained without insisting for adopting statutory remedies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. We are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Water Works Co. v. Hawkesford [1859] 6 CB(NS) 336 at page 356 in the following passage: 'There are three classes of cases in which a liability may be established founded upon 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.' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner's case pertains to an erroneous exercise of jurisdiction, namely, exigibility to sales tax of 'slump sale', applicability of the Full Bench judgment of the Andhra Pradesh High Court and legality of the penalty and, therefore, can be validly urged before the appellate forum. The petitioner has approached this court, as a precondition to the filing of an appeal is the requirement to predeposit a part of amount claimed by the Revenue. We are not inclined, to entertain the appeal merely because the petitioner is statutorily required to pre-deposit tax and penalty. In view of the above, we refrain from interfering with the assessment order and dispose of the writ petition by relegating the petitioner to the appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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