TMI Blog2019 (8) TMI 1602X X X X Extracts X X X X X X X X Extracts X X X X ..... nds including the ground regarding the violation of principles of natural justice as well as the jurisdiction. This Court is of the considered opinion that all such original issues now raised by the writ petitioner regarding the particulars, details and documents given to the tax authorities, are to be adjudicated by the appellate authorities by calling for the original files, evidences and other particulars produced by the writ petitioner at the time of enquiry and decide the matter on merits and in accordance with law by affording opportunity to the writ petitioner. Maintainability of petition - availability of alternative efficacious remedy of appeal - HELD THAT:- Section 51 of the Act, 2006 provides an appeal before the Appellate Deputy Commissioner. The impugned order itself states that the writ petitioner is at liberty to prefer an appeal before the Appellate Deputy Commissioner, Commercial Taxes Building, A.R.Line Road, Palayamkottai, Tirunelveli-627 002, within 30 days from the date of receipt of a copy of the impugned order as per Section 51 of the Act, 2006 - This being the principles to be considered, the writ petitioner is at liberty to prefer an appeal before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditions to taxable turnover of the writ petitioner. The pre-assessment notice dated 06.02.2018 had been proposed, rejecting the turnover disclosed by the writ petitioner and assessed the writ petitioner under Section 22(4) of the Act. 4. The learned counsel appearing on behalf of the writ petitioner also states that the turnover is on all India basis, since the writ petitioner is a banking institution having branches in all over country. Thus, an objection is raised in respect of such assessment made by the respondent. This apart, the ground regarding the competency and jurisdiction also has been raised by the writ petitioner before the competent authority. 5. The grievance of the writ petitioner is that none of the legal grounds, including jurisdiction raised by the writ petitioner were not considered and the impugned order is passed. Mainly, the learned counsel appearing on behalf of the writ petitioner contended that in view of the violation of principles of natural justice and the layman approach adopted by the tax authorities, the present Writ Petition is filed. The writ petitioner has chosen to file the present Writ Petition, in view of the fact that the writ petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India cannot adjudicate certain disputed issues, facts and various other circumstances, arising on account of intricacies involved in tax matters. However, all such intricacies with reference to all the original files as well as the evidences available can only by adjudicated effectively by the authorities competent and thereafter, by the appellate authorities. Such an opportunity is not only provided to the benefit of the litigant concerned, but undoubtedly, will be a guiding factor for the higher Courts to decide the matter under Article 226 of Constitution of India. Thus, the adjudication of certain original facts by the competent authorities as well as by the appellate authorities are of paramount importance. The aggrieved persons must approach the competent authority at the first instance. Thus, dispensing with the alternative remedy being an exception cannot be exercised by the High Courts in a routine manner by exercising the power of judicial review under Article 226 of Constitution of India. 10. This being the principles to be followed, this Court is of the considered opinion that all such original issues now raised by the writ petitioner regarding the particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bar Association vs. Union of India (UOI)(25.09.2014-SC): MANU/SC/0875/2014 If the historical background, the preamble, the entire scheme of the Constitution, relevant provisions thereof including Article 368 are kept in mind there can be no difficulty in discerning that the following can be regarded as the basic elements of the constitutional structure. (These cannot be catalogued but can only be illustrated): (1) The supremacy of the Constitution. (2) Republican and Democratic form of government and sovereignty of the country. (3) Secular and federal character of the Constitution. (4) Demarcation of power between the Legislature, the executive and the judiciary. (5) The dignity of the individual secured by the various freedoms and basic rights in Part III and the mandate to build a welfare State contained in Part IV. (6) The unity and the integrity of the Nation. 2. Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr. [MANU/SC/0445/1973 : (1973) 4 SCC 225]. That separation of powers between the legislature, the executive and the judiciary is the basic structure of the Constitution is expressly stated by Sikri, C.J. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 of the Constitution of India. Accordingly, breach of separation of judicial power may amount to negation of equality Under Article 14. Stated thus, a legislation can be invalidated on the basis of breach of the separation of powers since such breach is negation of equality Under Article 14 of the Constitution. (iv) The superior judiciary (High Courts and Supreme Court) is empowered by the Constitution to declare a law made by the legislature (Parliament and State legislatures) void if it is found to have transgressed the constitutional limitations or if it infringed the rights enshrined in Part III of the Constitution. (v) The doctrine of separation of powers applies to the final judgments of the courts. Legislature cannot declare any decision of a court of law to be void or of no effect. It can, however, pass an amending Act to remedy the defects pointed out by a court of law or on coming to know of it aligned. In other words, a court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. (vi) If the legislature has the power over the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition reveals all material facts; (c) the Petitioner has any alternative or effective remedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty of unexplained delay and laches; (e) ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barred by any valid law; and host of other factors. 2. KanaiyalalLalchand Sachdev and Ors. vs. State of Maharashtra and Ors.(07.02.2011 - SC) : MANU/SC/0103/2011 It is well settled that ordinarily relief Under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. (See Sadhana Lodh v. National Insurance Co. Ltd.; Surya Dev Rai v. Ram Chander Rai and SBI v. Allied Chemical Laboratories.) 3. Commissioner of Income Tax and Ors. v. ChhabilDass Agarwal, MANU/SC/0802/2013 : 2014 (1) SCC 603, as follows: Para 15. while it can be said that this Court has recognised some exceptions to the Rule of alternative remedy i.e. Where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following terms Considering the plea regarding alternative remedy as raised by the appellant-State. Except for a period when Article 226 was amended by the Constitution (42nd Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction. 6. K.S. Rashid and Sons v. Income Tax Investigation Commission and Ors., AIR (1954) SC 207; Sangram Singh v. Election Tribunal, Kotah and Ors., AIR (1955) S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aggrieved persons are bypassing the appeal remedy in order to avoid the deposit of 25% of the assessment amount before the appellate authority for the purpose of entertaining an appeal. 13. The learned counsel appearing on behalf of the writ petitioner states that the writ petitioner has not avoided these aspects. However, the auditor's certificate was not considered by the competent authorities which amounts to negligence. However, non-consideration of the auditor's certificate is also an issue to be adjudicated and a finding is to be arrived by the appellate authorities. The nature of the auditor's certificate, the particulars provided in the auditor's certificates are also to be scrutinized and to be adjudicated with reference to the issues raised and findings are to be arrived by the appellate authorities also. Only in such events, the High Court would be in a position to exercise the power of judicial review nor understand the complete facts and circumstances as well as the definite grievances raised by the aggrieved persons. Contrarily, if those provisions are not exercised, the High Court would not be in a position to come to the definite conclusion w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
