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TMI Blog2015 (1) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... ears 2003-04 and 2004-05 under Section 17D of the Act, complaining that it had not been preceded by a public hearing, the appellant approached this Court by filing W.P.(C)No. 9206/2010. 3. Through judgement dated 05.04.2010, this Court allowed the writ petition directing the second respondent to pass fresh orders within a stipulated time frame, by fully complying with the statutory requirements. In compliance with the directions of this Court, the second respondent duly notified through print media that it would be holding a hearing on 28.05.2010. It also required the appellant to produce the books of accounts on that day. The representatives of the appellant appeared before the 2nd respondent and represented that, in the light of the decentralisation of the accounting procedure spreading along numerous branches across the length and breadth of Kerala, the records are too voluminous to be carried and that necessary explanation with reference to the audit report had already been submitted before the first respondent. Despite the said representation, the second respondent insisted on the authorities of the appellant that they produce the details of particular receipts shown under Sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the very transaction falls outside the purview of the Act. In other words, the income received does not come under the definition of the term "turnover", as defined under the Act. 9. Placing reliance on certain decisions of the Honourable Supreme Court and also of this Court, the learned Standing Counsel has contended that the assessing authority has no jurisdiction to subject the appellant to fresh assessment based on the amounts received by it on its extending the service of interconnection facility to other service providers. 10. Making strenuous efforts to surmount the hurdle of alternative remedy, the learned Standing Counsel has vehemently contended that since the assessment is without jurisdiction on the part of the assessing authority, it is essentially a matter of lack of jurisdiction and ipso facto, the very assessment proceedings are ultra vires the assessing authorities. Expatiating on his submissions, the learned Standing Counsel has submitted that it is too well known to be restated that when a proposed act of an authority is ultra vires, the principle of alternative remedy cannot come in the way of adjudication by this Court under Article 226 of Constitution of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such, instead of adjudicating on its own, this Court, contends the learned Standing Counsel, cannot throw out the case on a mere technicality. 16. The learned Standing Counsel, to his credit, has made several other submissions essentially on the merits of the matter, including the issue of tax situs, thereby questioning the territorial jurisdiction of the respondent authorities. 17. Per contra, the learned Government Pleader representing the respondents, having drawn our attention to Section 34 of the Act, has strenuously resisted the submission of the learned Standing Counsel that given the importance of the issue, this Court alone should decide the matter. According to him, Section 34 of the Act provides an elaborate mechanism to assail the orders of the assessing authority. In his submissions, it is not a mere alternative remedy, but certainly an efficacious one, too. 18. The learned Government Pleader for the respondent, taking us through the records, further submitted that the appellant, either in the pleadings or during making oral submissions before this Court, has not established any valid reason to ignore the alternative remedy of appeal and take recourse to judicial re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter. 22. Under almost identical circumstances as we have presently, the Hon'ble Supreme Court in Tin Plate Co. of India Ltd. v. State of Bihar ((1998) 8 SCC 272 (at p.274)) has observed that when an alternative and efficacious remedy is open to a person, he should be required to pursue that remedy and not to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution. It is emphasised that where such a remedy is available, it would be a sound exercise of discretion to refuse entertainment of the writ petition under Article 226 of the Constitution. It is further observed that if the writ petition under Article 226 is to be dismissed on the ground of alternative remedy, the Court is not required to express any opinion on the merits of the case which is to be pursued before an alternative forum. 23. Though the Indian Telegraph Act, 1885 and the Indian Wireless Telegraphy Act, 1933 are the statutes that govern the telecommunications and radio frequencies in India, it is the New Telecom Policy, 1999, which replaced the National Telecom Policy of 1994, that takes care of the nuances of the technical issues. In fact, the Telecom Regulatory A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particular source of income to tax within the statutory framework of the Kerala General Sales Tax Act, 1963. Thus, the question boils down to whether it is a proper or improper exercise of taxing power on the part of the respondents. It bears reiteration, if not repetition, that it is the inherent lack of power, as is not the case presently, that could give rise to the necessary cause of action for the appellant to knock at the doors of this Court, notwithstanding the availability of an alternative remedy. 28. The learned Standing Counsel has also submitted that the appellant was not provided with sufficient opportunity before passing the assessment orders. Without quibbling over semantic niceties, it can be stated that there is difference between denial of opportunity and lack of ufficient opportunity. 29. A perusal of the impugned judgement reveals that the learned Single Judge has ruled on two aspects. In the first place, it is observed that there is an efficacious alternative remedy and accordingly, necessary directions were also given in that regard. Secondly, the learned single Judge has also observed that the appellant has been provided with sufficient opportunity, includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged, an alternative remedy does not operate as a bar. 33. Regrettably, we do not see any of the above contingencies in the present case to dispense with the rule of alternative remedy, more particularly under Section 34 of the Act. It is a statutory appellate body that has been created for a specific purpose. Thus, the remedy available to the appellant is not only alternative, but also efficacious. As such, we could not persuade ourselves to accept the contention of the learned Standing Counsel that the alternative remedy is not a bar. Neither the urgency of adjudication, nor the gravity of the issue, leave alone the status of the appellant being a public sector undertaking, can be judicially acknowledged as an exception to the rule of alternative remedy. 34. We shall now address the other aspect of the matter. As has already been adverted to, there shall be no discussion on the merits of the matter if the issue is to be decided primarily on the question of maintainability. At the same time, it has to be stated that if an issue, seemingly one concerning the merits of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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