TMI Blog1983 (4) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... those transactions which are, on a true view of the facts and the law, taxable. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the prescribed authority under sub-s. (1) of s. 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-s. (3) of s. 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under s. 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under art. 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. Appeal dismissed. - Special Leave Petition (Civil) No. 4513, 4514 of 1983, W.P. Nos. 3363, 3364 of 1983 - - - Dated:- 13-4-1983 - Judge( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntained in r. 12(5) of the Rules and in sub-s. (4) of s. 12 of the Act enjoin the affording of reasonable opportunity to the dealer for completion of assessment. The learned STO observes that he gave repeated opportunities to the petitioners to get themselves ready for the assessment of tax and to produce their account books and other documents but they sought adjournments on one pretext or another. Eventually on February 16, 1983, the learned STO refused to grant any further adjournment holding that the petitioners had sufficient opportunity and accordingly proceeded to best judgment under r. 15 of the Rules and subs. (4) of s. 12 of the Act. In the absence of any material, the learned, STO made an assessment under r. 15 of the Rules treating the gross turnover of sales in the course of inter-state trade and commerce amounting to Rs. 7,13,94,903.63, as returned by the petitioners under the Central Sales tax Act, 1956, to be their taxable turnover and the tax payable thereon at 10% at Rs. 71,39,490.36. After allowing an adjustment of Rs. 27,88,388, 47 paid by the petitioners along with the quarterly return, the learned STO has raised a demand for payment of a sum of Rs. 43,51,101.8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile making an assessment under r. 15 of the Central Sales Tax (Orissa) Rules, 1957, to treat the gross turnover as returned by the petitioner to be their taxable turnover. (2) He was not justified in disallowing the claim for deduction of Rs. 6,74,99,085.65 representing sales to registered dealers and departments of Government, as well as of Rs. 28,24,224.42 on account of tax collected from the purchasers from the gross turnover of sales in the course of inter-state trade and commerce amounting to Rs. 7,13,94,903.63. (3) He wrongly denied the petitioners the benefit of the concessional rate of tax at 4% merely because they failed to furnish the requisite declarations in Form C. (4) He could not, for similar reasons, while making an assessment under sub-s. (4) of s. 12 of the Orissa Sales Tax Act, 1947, treat the gross turnover of inside sales amounting to Rs. 2,02,07,852.65 as returned by the petitioners to be their taxable turnover nor was he justified in disallowing their claim for deduction of Rs. 1,80,65,167.66, representing sales to registered dealers merely because they failed to produce the prescribed declarations from registered dealers. (5) And the learned STO had acted i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construing the section it is pertinent, in their Lordships' opinion, to ascertain whether the Act contains machinery which enables an assessee effectively to raise in the courts the question whether a particular provision of the Income-tax Act bearing on the assessment made is or is not ultra vires. The presence of such machinery, though by no means conclusive, marches with a construction of the section which denies an alternative jurisdiction to inquire into the same subjectmatter." We are not oblivious of the fact that this court in K. S. Venkataraman Co. v. State of Madras [1966] 2 SCR 229 ; [1966] 60 ITR 112 ; 17 STC 418 (SC), in a five-judges Bench by a majority of 3 : 2 has dissented with the view expressed by the Privy Council in Raleigh Investment Co.'s case [1947] 15 ITR 332, and held that an assessment made on the basis of provision which is ultra vires is not an assessment made under the Act. It was observed that the entire reasoning of the judicial Committee was based upon the assumption that the question of ultra vires can be canvassed and finally decided through the machinery provided under the I.T. Act. The majority observed that the hierarchy of authorities set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he following observations made by this court in State of Uttar Pradesh v. Mohammad Nooh [1958] SCR 595, 609 (SC) I "If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fair play the superior court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the court or tribunal of first instance, even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned." We find no justification for extending the principles laid down in Mohammad Nooh's case, to a case like the present where there is an assessment made by the learned STO under the Act. In Raleigh Investment Co.'s case [1947] 15 ITR 332 the Privy Council rightly observed that the phrase " made under the Act " described the" Provenance of the assessment; it does not relate to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Now Water Worhs Co. v. Hawkesford (1859] 6 CB (NS) 336 at p. 356 in the following passage : " There are three classes of cases in which a liability may lie established founded upon statute ... But there is a third class, viz., where 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 " Newspaper Ltd. [1919] AC 368 (HL) and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant Co. [1935] AC 532 (PC) and Secretary of State v. Mask Co., AIR 1940 PC 105. It has also been held to be equally applicable to enforcement of rights, and has been followed by this court throughout. The High Court was, therefore, justified in dismissing the writ petitions in limine. Furthermore, the Act provides for an adequate safeguard against an arbitra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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