TMI Blog2017 (8) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... hinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The writ petition is disposed of by relegating the petitioner to alternative remedy of appeal against the impugned order dated 31.03.2016 - decided in favor of petitioner. - CWP No. 16333 of 2016 - - - Dated:- 26-7-2017 - MR. AJAY KUMAR MITTAL AND MR. AMIT RAWAL, JJ. For The Petitioner : Mr. Sandeep Goyal, Advocate Ajay Kumar Mittal,J. 1. Prayer in this petition filed under Articles 226/227 of the Constitution of India is for quashing the assessment order dated 31.03.2016, Annexure P.3 for the assessment year 2012-2013 passed by respondent No.2-Excise and Taxation Officer-cum-Assessing Authority, Gurgaon, being in violation of the principles of natural justice as no notice in Form VAT N-2 had ever been served upon the petitioner within time, which is a pre-requisite for initiating assessment proceedings as per Section 15 of Haryana VAT Act, 2003 (in short, HVAT Act ). 2. A few facts relevant for the decision of the controversy involved as narrated in the petition may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt file on 02.08.2016 from which it transpired that no notice in Form VAT N- 2 had been served on the petitioner as there was no copy of the same available on the file. It was further noticed that the notices dated 01.03.2016 and 16.03.2016 had been sent at the old address of the petitioner, as a result of which, the same could not be served upon the petitioner. Since the order in question is alleged to have been passed in violation of principles of natural justice, the petitioner is left with no alternative remedy but to approach this Court through the instant writ petition. 3. A written statement has been filed by respondent No.2 for and on behalf of respondent Nos.1 and 2 wherein a preliminary objection has been raised that the petitioner has challenged the validity of an ex-parte assessment order dated 31.03.2016, Annexure P.3, without exhausting the alternative and efficacious remedy of appeal which was available to it in terms of Section 33 of the HVAT Act. 4. Learned counsel for the petitioner submitted that the petitioner had changed its address and intimation thereof was given to the Assessing Authority vide letter dated 15.09.2013. Even the return for the year in qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See: State of U.P. vs. Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. vs. State of Orissa , (1983) 2 SCC 433; Harbanslal Sahnia vs. Indian Oil Corpn. Ltd ., (2003) 2 SCC 107; State of H.P. vs. Gujarat Ambuja Cement Ltd. , (2005) 6 SCC 499). 16. The Constitution Benches of this Court in K.S. Rashid and Sons vs. Income Tax Investigation Commission , AIR 1954 SC 207; Sangram Singh vs. Election Tribunal, Kotah, AIR 1955 SC 425; Union of India vs. T.R. Varma, AIR 1957 SC 882; State of U.P. vs. Mohd. Nooh , AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. vs. State of Madras , AIR 1966 SC 1089 have held that though Article 226 confers a very wide powers in the matter of issuing writs on the High Court, the remedy of writ absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... created by a statute which gives a special remedy for enforcing 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 Waterworks Co. v. Hawkesford, 141 ER 486 in the following passage: (ER p. 495) 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. Ltd., 1935 AC 532 (PC) and Secy. of State v. Mask and Co ., AIR 1940 PC 105 It has also been held to be equally applicable to enforcement of rights, and has been followed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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