TMI Blog2010 (7) TMI 1072X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee under the VAT Act and the Central Sales Tax Act, 1956, and is a manufacturer and marketer of edible oils. For the period from April 2006 to March 2008 (two years) the petitioner claimed input tax credit and paid tax accordingly. The records of the petitioner were audited on 07.07.2008. It was noticed that the petitioner claimed excess input tax credit to a tune of ₹ 20,76,106/- during the audit period. Therefore, the first respondent, namely, Commercial Tax Officer, Special Commodities Circle, Saroornagar, proposed to levy penalty under Section 53(3) of the VAT Act and issued notice in Form 203 A calling upon the petitioner to file written objections, if any, within seven days. The petitioner filed detailed objections, inter a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records to show that specific outputs were made by using specific inputs. He would nextly urge that when the allegations of fraud or willful neglect in filing the returns are absent in the show cause notice, imposing penalty equal to tax is without jurisdiction. Lastly, he contends that when the impugned order is without jurisdiction the writ petition is not barred even though a right of appeal is provided under Section 31(1) of VAT Act. Opposing the writ petition the Special Standing Counsel for the Commercial Taxes submits that the remedy of appeal is a bar to entertain the writ petition. When once the dealer under declared tax it attracts Section 53(3) of the VAT Act and therefore no interference is called for. It is axiomatic that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge arrears. The Courts have already become overburdened by this over liberal approach instead of following the settled legal principle that a writ petition should ordinarily be dismissed if there is an alternative remedy. The High Courts in India are already tottering and reeling under the burden of massive arrears which have flooded the dockets of the Court, and such kind of over liberal approach has only multiplied this problem manifold. If this approach is further continued a time will surly come when the High Courts will find it impossible to function. All this has happened because unfortunately some Courts have departed from well-settled legal principles. (emphasis supplied) There cannot be any dispute that as laid down by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, namely, whether High Court could have entertained a writ petition ignoring alternative remedy provided by the Act and whether the provisions imposing penalty can be interpreted by pointing out deficiencies. On the first question, it was held that, assessee cannot abandon to resort to machinery provided under the Act and directly invoke remedy under Article 226 of Constitution of India . The observations are as follows (para 3). In our view, the petition filed by the appellant should not have been entertained. The Income Tax Act provides a complete machinery for assessment of tax and imposition of penalty and for obtaining relief in respect of any improper orders passed by the Income Tax authorities, and the appellant could not be pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action taken by the departmental authorities, and normally the party feeling himself aggrieved by such action cannot be permitted to refuse to have recourse to that machinery and to approach the High Court directly against the action. A writ of certiorari is discretionary; it is not issued merely because it is lawful to do so. Where the party feeling aggrieved by an order of an Authority under the Income Tax Act has an adequate alternative remedy which he may resort to against the improper action of the authority and he does not avail himself of that remedy the High Court will require a strong case to be made out for entertaining a petition for a writ. Where the aggrieved party has an alternative remedy the High Court would be slow to en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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