TMI Blog2022 (9) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... case-law as well as Circular cited and relied upon have been omitted to be considered. The aforesaid finding is based upon appeal records that have been called for and verified. The threshold for interference would also depend on whether the order challenged is an original order of assessment passed by the Assessing Officer or one passed in Appeal and in the later circumstances, unless, the error pointed out is patent and goes to the root of the matter, the preferred course of action must continue with the appellate hierarchy itself - the threas-hold has not been achieved. No doubt, the Appellate Authority, being a quasi-judicial authority, has to pass a reasoned and speaking order, taking note of all arguments advanced, and materials su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .A query was put to the petitioner as to why it has chosen to deviate from the statutory appellate hierarchy that had been resorted to initially, as against the order-in-original, and rightly so. A Division Bench of this Court in the case of Nivaram Pharma Pvt. Ltd. Vs. The Customs, Excise and Gold (Control) Appellate Tribunal, South Regional Bench and Ors. [2005 (124) ECR28 (Mad)] had considered a challenge to an order of the Customs, Excise and Gold (Control) Appellate Tribunal (in short 'CEGAT') and the Writ Petition came to be rejected on the ground that a statutory appeal was provided for as against the order of CEGAT and hence, the petitioner ought to have continued in the chosen path of appellate remedy. The writ petition w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factually correct in that, the case-law as well as Circular cited and relied upon have been omitted to be considered. The aforesaid finding is based upon appeal records that have been called for and verified. 8.In the counter filed in respect of the Writ Petition, the respondent curtly, and in my view belatedly, states that the circular and case law cited, do not support the stand of the petitioner. It is not for the respondent to support the impugned by way of a statement in the counter that does not figure in the impugned order. 9.As observed by the Hon'ble Supreme Court in the case of Mohinder Singh Gill and Another Vs. The Chief Election Commissioner and Others [1978 AIR 851], an order has to be fully supported by the reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of this Court. 14. The maintainability of a writ petition, particularly when the petitioner has an efficacious alternate remedy, has to be tested and determined on the anvil of whether the error is so egregious and serious that it goes to the root of the matter and warrants interference by the Court bypassing the alternate remedy available. This is not, in my opinion, such a matter. No doubt, as elaborated in the preceding paragraphs, the impugned order should have indicated more application of mind and diligence in dealing with the submissions of the assessee, I am not persuaded to hold the writ petition maintainable. 15. The petitioner herein has remitted 100% of the disputed tax and is clearly not pursuing Writ remedy merely as ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
