TMI Blog2010 (5) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... ment in pursuance to Section 26 of the Act. The filing of annual return under Section 24 of the Act, is one more reason for setting aside the impugned order. Petition allowed - decided in favor of assessee. - Misc. Bench No. 4364 of 2010 - - - Dated:- 17-5-2010 - Devi Prasad Singh Dr. Satish Chandra, JJ. For the Appellant : Sri Neerav Chitravanshi, Advocate For the Respondent : Sri H.P. Srivastava, Chief Standing Counsel JUDGMENT Since purely substantial question of law is involved, learned Additional Chief Standing Counsel does not intend to file the counter affidavit. Hence, with the consent of the parties, we proceed to decide the writ petition finally at the admission stage. 2. Short question involved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t suffer from any illegality or impropriety. However, argument of learned Additional Chief Standing Counsel has been rebutted by the petitioner s counsel with submission that annual original return was filed within the stipulated period. Hence, as and when return is filed, respondents looses its right to proceed under Section 25 (1) (ii) of the Act. One other argument advanced by the learned Additional Chief Standing counsel is that the petitioner should approach the appellate forum under Section 55 of the Act. 6. For convenience Section 25 (1) (ii) of the Act is reproduced as under: 25. Assessment of tax for a tax period : (1) Where in respect of any tax period of an assessment year- (i) any dealer has not submitted tax return within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act. In the event of filing of annual return within the stipulated period in view of the power conferred by Section 24 of the Act, no proceeding could have been taken place under the impugned provision. 7. The argument of the respondents counsel that the appeal should be relegated to the alternative forum is not sustainable in view of the fact that their lordships of Hon ble Supreme Court by a catena of judgments ruled that things should be done in the manner provided under the Act and statute and in case the authorities had not discharged their obligation within the four corners of law or has acted without jurisdiction, then court should not shirk from its responsibility to interfere under its extra ordinary jurisdiction under Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Madhya Pradesh), it has been further held that it is self-imposed limitation and does not oust the jurisdiction of this court to exercise power conferred by Article 226 of the Constitution of India even if an alternative remedy is available to an aggrieved person. 12. Their lordships of Hon ble Supreme Court in the case reported in 1953 SC 252 (State of Bombay. Vs. United Motors), held that alternative remedy shall not come into the way where party come to court with an allegation that his fundamental right has been violated and sought the relief under Article 226 of the Constitution of India. 13. It has been settled by Hon ble Supreme Court in the case reported in AIR 1961 SC 372 (Calcutta Discount Company Vs. I.T.O.) and AIR 1967 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia. 16. In a case reported in (2009) 14 SCC 338 (Godreg Sara Lee Ltd. Vs. Commr.) Hon ble Supreme Court observed held that if the order of statutory authority is questioned on the ground of lack of jurisdiction, Court may interfere and the alternative remedy is no bar. Their lordships held that where issue relating to jurisdictional fact is raised, it should have been determined by the High Court in exercise of writ jurisdiction under Article 226 of the Constitution of India. 17. In the case reported in (2009) 9 SCC 610 (Babubhai Jamunadas Patel. Vs State of Gujarat), Hon ble Supreme Court held that High Courts and Supreme Court are sentinels of justice. They have been vested with extraordinary powers of judicial review and supervisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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