TaxTMI 
TaxTMI 
2013 (10) TMI 346
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....ound, submission or contention whatsoever with regard to the merits of the impugned order even though the Petitioner is in a position to demonstrate and establish, beyond a shadow of doubt, that the impugned assessment order made by the assessing officer is patently erroneous and contrary to law. The petitioners are, in the present writ petition, specifically confining himself only to the basic and fundamental jurisdictional issue whether the assessing officer could create such legally untenable demand without following even a semblance of due process of law and create tax liabilities when no such liability could be created had he given a chance to the petitioner to make submissions in defence of the presumptions raised by the Respondent No.1 to bring turnovers to tax that he could not in view of the settled lawmore so the sale in the course of import and interstate sales effected by the petition as per law. The facts leading to this Civil Writ Petitioner are as follows: * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * X) The petitioners are, therefore, through this Writ petition, challenging the order of assessing authority, predominantly on the ground that t....
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....f interstate sale and rendition of such certain services by way of installation, commission and testing of the plants and equipments at Raghunathpur within the State of West Bengal. Indisputably three contract agreements of the even date were entered into between the petitioner and the said Damodar Valley Corporation and the petitioner successfully performed its obligation under the aforesaid contracts. The Bureau of Investigation ( hereinafter referred to as BOI) seize some of the books of the petitioner pertaining to the Financial year 2009-2010 and asked the petitioner to appear before the investigating officer. The petitioner submitted its written submission and took a defence that no work contract activity was undertaken within the State and pleads no liability to pay tax under the Vat Act. The petitioner further stated that the entire work was entrusted upon the sub-contractors and, therefore, there is no liability foisted upon the petitioner for payment of the tax under the Vat Act. What emanates from the assessment order on its meaningful reading can be illustrated hereunder: (i) The contracts are individual and inseparable as the intention of the parties were to set up a....
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....t order on merit. Mr. Bhattacharjee, the learned Advocate appearing for the petitioner submits that the order which is passed in gross violation of the principle of natural justice cannot be sustained as the said rule is end to secure justice or to prevent the miscarriage of justice and placed reliance upon a judgment of the Supreme Court in case of Kraipak -vs- Union of India reported in AIR 1970 SC 150. He further submits that although the authority is competent to make an inquiry but if it does in flagrant violation and/or disregard of the rule of procedure, it is violative of the principle of natural justice and placed reliance upon a judgment of the Supreme Court in case of TC Basappa -vs- T. Nagappa reported in AIR 1954 SC 440, State of U.P. -vs- Shatrughan Lal & anr. reported in (1998) 6 SCC 651. He audaciously submits that non-supply of the copy of the documents which is foundation of the decision violates the principles of natural justice and placed reliance upon a judgment of the Supreme Court in case of High Court of Punjab & Haryana -vs- Amrik Singh reported in 1995 Supplementary (1) SCC 321. On the plea of alternative remedy, Mr. Bhattacharjee submits that it is not a....
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....ner and the contention of the petitioner that it was not issued is in correct. Maintaining the aforesaid submissions, Mr. Majumdar alternatively contends that even if, there is an infraction of the principles of natural justice, the remedy of the petitioner is before the Tribunal constituted under Article 323B of the Constitution of India and not before the single bench of the High Court and placed reliance upon a judgment of the constitutional bench rendered in case of L. Chandra Kumar -vs- Union of India & ors., reported in (1997) 3 SCC 261. He further submits that the petitioner cannot jump the competent forum in directly approaching the single bench of the High Court when there is already other remedy provided. Having considered the respective submissions, the point evolved from the respective submissions is whether the writ petition could be maintained, even if, it is found that there has been a violation of the principles of natural justice before approaching the tribunal constituted under Article 323B of the Constitution of India. The contracts awarded to the petitioner are the composite one and be treated as a single contract or distinct and separate is a matter relates t....
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.... which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of ay of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field." The principles laid down in the Whirlpool Corporation (supra) are consistently followed in umpteen number of judgments, some of which can be referred as follows: (1) Escorts Farms Limited -vs- Commissioner of Kuma non Division Nainital reported in (2004) 4 SCC 281. (2) Fiayez Ali _vs- Secretray Law reported in 2011 (1) CLT 137 (HC) (3) Canara Bank -vs- V Kawasthy reported in (2005) 6 SCC 321. (4) State of U.P. -vs- Saroj Kumar Sinha reporetd in (20....
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....nceived. The Constitution of India, being alive to such criticism, has while conferring such power upon the higher judiciary, incorporated important safeguards. An analysis of the manner in which the Framers of our Constitution incorporated provisions relating to the judiciary would indicate that they were very greatly concerned with securing the independence of the judiciary. These attempts were directed at ensuring that the judiciary would be capable of effectively discharging its wide powers of judicial review. While the Constitution confers the power to strike down laws upon the High Courts and the Supreme Court, it also contains elaborate provisions dealing with the tenure, salaries, allowances, retirement age of Judges as well as the mechanism for selecting Judges to the superior Courts. The inclusion of such elaborate provisions appears to have been occasioned by the belief that, armed by such provisions, the superior courts would be insulated form any executive or legislative attempts to interfere with the making of their decisions. The Judges of the superior courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the powe....
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....t raised. We cannot bring ourselves to agree to this proposition as that may result in splitting up proceedings and may cause avoidable delay. If such a view were to be adopted, it would be open for litigants to raise constitutional issues, many of which may be quite frivolous, to directly approach the High Courts and thus subvert the jurisdiction of the Tribunals. Moreover, even in these special branches of law, some areas do involve the consideration of constitutional questions on a regular basis; for instance, in service law matters, a large majority of cases involve an interpretation of Articles 14, 15 and 16 of the Constitution. To hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Articles 226/227 of the Con....
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....o a further scrutiny before the Division Bench of the High Court and it is relevant to quote Paragraph 99 of the said judgment which is reproduced below: "99. In view of the reasoning adopted by us, we hold that clause 2 (d) of Article 323-A and clause 3 (d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the Constitutional validity of statutory provisions and rules. All ....