TMI Blog2022 (9) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... of the availability of statutory remedy under the Act. There are serious disputes on facts as to whether the assessment order was passed on 20.03.2020 or 14.07.2020 - No valid reasons have been shown by the assessee to by-pass the statutory remedy of appeal. This Court has consistently taken the view that when there is an alternate remedy available, judicial prudence demands that the court refrains from exercising its jurisdiction under constitutional provisions. The High Court has seriously erred in entertaining the writ petition against the assessment order - the High Court ought to have relegated the writ petitioner assessee to avail the statutory remedy of appeal and thereafter to avail other remedies provided under the statute - The writ petition filed before the High Court challenging the assessment order and consequential notice of demand of tax is hereby dismissed. - CIVIL APPEAL NO. 4956 OF 2022 - - - Dated:- 20-9-2022 - M. R. SHAH And B. V. NAGARATHNA , JJ. For the Appellant : Mr. Sachin Patil, Adv. Mr. Siddharath Dharmadhikari, Adv. Mr. Geo Joseph, Adv.Mr. Durgesh Gupta, Adv. Mr. Aaditya A. Pande, AOR. Mr. Bharat Bagla, Adv. For the Respondent : M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution of India and has passed the impugned judgment and order quashing and setting aside the assessment order and the demand notice. 2.3 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the State of Maharashtra and others have preferred the present appeal. 3. Number of submissions have been made by the counsel appearing for the respective parties on merits and on the assessment order passed by the Assessing Officer. However, for the reasons given hereinbelow, we are of the opinion that against the assessment order, the High Court ought not to have entertained the writ petition and ought to have relegated the assessee to prefer a first appeal before the first appellate authority. Therefore, we are not elaborating the submissions on merits. 4. Shri Sachin Patil, learned counsel appearing on behalf of the appellants has vehemently submitted that against the assessment order passed by the Assessing Officer under the provisions of the MVAT Act and CST Act, the High Court ought not to have entertained the writ petition under Article 226 of the Constitution of India. 4.1 It is next submitted by the learned counsel ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be noted that against the assessment order passed by the Assessing Officer under the provisions of the MVAT Act and CST Act, the assessee straightway preferred writ petition under Article 226 of the Constitution of India. It is not in dispute that the statutes provide for the right of appeal against the assessment order passed by the Assessing Officer and against the order passed by the first appellate authority, an appeal/revision before the Tribunal. In that view of the matter, the High Court ought not to have entertained the writ petition under Article 226 of the Constitution of India challenging the assessment order in view of the availability of statutory remedy under the Act. At this stage, the decision of this Court in the case of Satyawati Tondon (supra) in which this Court had an occasion to consider the entertainability of a writ petition under Article 226 of the Constitution of India by by-passing the statutory remedies, is required to be referred to. After considering the earlier decisions of this Court, in paragraphs 49 to 52, it was observed and held as under: 49. The views expressed in Titaghur Paper Mills Co. Ltd. vs. State of Orissa (1983) 2 SCC 433 were echoe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though a provision under an Act cannot expressly oust the jurisdiction of the Court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act. 51. In CCT v. Indian Explosives Ltd. [(2008) 3 SCC 688] the Court reversed an order passed by the Division Bench of the Orissa High Court quashing the show-cause notice issued to the respondent under the Orissa Sales Tax Act by observing that the High Court had completely ignored the parameters laid down by this Court in a large number of cases relating to exhaustion of alternative remedy. 52. In City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala [(2009) 1 SCC 168] the Court highlighted the parameters which are required to be kept in view by the High Court while exercising jurisdiction under Article 226 of the Constitution. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are v. Directorate of Enforcement [(2010) 4 SCC 772] the Court was dealing with the issue whether the alternative statutory remedy available under the Foreign Exchange Management Act, 1999 can be bypassed and jurisdiction under Article 226 of the Constitution could be invoked. After examining the scheme of the Act, the Court observed: (SCC p. 781, paras 31-32) 31. When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go-by by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction. 32. No reason could be assigned by the appellant's counsel to demonstrate why the appellate jurisdiction of the High Court under Section 35 of FEMA does not provide an efficacious remedy. In fact there co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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