TaxTMI 
TaxTMI 
2008 (9) TMI 897
X X X X Extracts X X X X
X X X X Extracts X X X X
....ied tax in a sum of Rs. 9,39,97,474 and surcharge of Rs. 20,931 and additional sales tax in a sum of Rs. 87,217. Apart from that penalty in a sum of Rs. 14,09,13,503 was also levied. Aggrieved by the assessment order, the appellant filed Writ Petition No. 2392 of 2008(1) for quashing the assessment on the ground that the assessment has been passed without jurisdiction and in total violation of principles of natural justice. The further ground of attack was that the said assessment order has been passed as per the proposal made by the Enforcement Wing Officers, who conducted the inspection and gathered materials from the appellant's premises and that the imposition of tax and penalty is totally arbitrary and ex facie illegal and liable to be set aside. The writ court dismissed the petition on the ground of availability of alternative remedy. The said order is canvassed before this court. Mr. Arvind P. Datar, learned senior counsel appearing for the appellant/ assessee, contended that the assessment order made in respect of the assessment year 2004-05 is ex facie illegal and it is an exercise exceeding the jurisdiction vested on the assessing officer; abuse of process of law; a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... before the writ court could very well be agitated in the statutory appeal provided under the statute. When an efficacious and effective alternative remedy is available, and when a disputed question of fact is involved as to the genuineness of the purchasers, this court should not interfere with the assessment order, and that is what the writ court has done in the present case. Hence, no interference is called for in the order of the writ court. We heard the learned counsel on either side and perused the materials available on record. Generally, this court will not interfere with assessment orders, by exercising jurisdiction under article 226 of the Constitution of India as there are effective and efficacious alternative remedies available to the assessee by way of appeal and further appeal and by way of statutory revision before this court. However, on the face of the assessment order, if the court feels that the assessment order has been passed without jurisdiction, the court can interfere. The rule relating to the existence of an alternative remedy as barring the writ jurisdiction under article 226 of the Constitution of India is only a rule of self-imposed limitation. It is ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....th it, but is rather a rule which courts have laid down for the exercise of their discretion. The law on this matter has been enunciated in several decisions of this court but it is sufficient to refer to two cases: In Union of India v. T.R. Varma [1958] SCR 499 at pp. 503-504 Venkatarama Ayyar speaking for the court said: 'It is well-settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the court to issue a writ; but, as observed by this court in Rashid Ahmed v. Municipal Board, Kairana AIR 1950 SC 163 "the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs". Vide also K.S. Rashid and Son v. Income-tax Investigation Commission AIR 1954 SC 207. And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under article 226, unless there are good grounds therefor.' There is no difference between the above and the formulati....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pplication to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the court, and that in a matter which is thus preeminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible Rules which should be applied with rigidity in every case which comes up before the court." In a three-judge Bench decision of the Supreme Court in the case of Arun Kumar v. Union of India [2006] 286 ITR 89, the Supreme Court has held as follows (at page 91): "A 'jurisdictional fact' is a fact which must exist before a court, Tribunal or an authority assumes jurisdiction over a particular matter. A jurisdictional fact is one on the existence or non-existence of which depends the jurisdiction of a court, a Tribunal or an authority. It is the fact upon which an administrative agency's power to act depends. If the jurisdictional fact does not exist, the court, authority or officer cannot act. If a court or authority wrongly assumes the existence of such fact, the order can be questioned by a writ of certiorari. The underlying principle is t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e order is not a speaking one or the matter has been disposed of on some other ground, this court has, in a suitable case, entertained the application under article 32 (Tilokchand Motichand v. H.B. Munshi, Commissioner of Sales Tax, Bombay [1970] 25 STC 289 (SC); AIR 1970 SC 898). Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of, the court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under article 226 (K.S. Rashid and Son v. Income-tax Investigation Commission AIR 1954 SC 207). Therefore, the fact that a suit had already been filed by the appellant was not such a fact the suppression of which could have affected the final disposal of the writ petition on merits." Thus, the exercise of power under article 226 of the Constitution of India is well-settled and established that if the order impugned is one passed without "jurisdiction", in spite of the availability of alternative statutory remedy, the court will entertain a petition and grant the appropriate remedy, if the facts available are enough for adjudicating the matter, without relegating the appellant to undergo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....arged its initial burden as per section 10 of the TNGST Act. On that basis, the assessment order, which is impugned in the writ petition, has been passed on December 7, 2007 for the assessment year 2004-05. On a perusal of the assessment order, we are not able to approve the way in which it has been passed, levying a huge amount as tax, additional tax and penalty, as stated above. The goods for which second-sale exemption has been claimed by the assessee are iron and steel which are declared goods and taxable on the first point of sale. There cannot be any dispute about the said legal position. The fact that the appellant purchased the goods, iron and steel, from the three registered dealers is also not disputed. The further fact is that the three registered dealers from whom the appellant has purchased the declared goods, iron and steel, were also assessed by the jurisdictional authorities in their assessment order dated March 30, 2006. In respect of Omicron Biogenesis Ltd., it is evident from the assessment orders that the dealer had produced the day-book, cash-book and sale bills, forms, etc. Their accounts were called for and checked by the assessing officers. On checking th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng dealers, the assessment orders passed against the three registered dealers have also been placed before the writ court. The entire turnover of the selling dealers of the appellant had been given exemption which is several manifold higher than the second-sale exemption claimed by the assessee on the ground of purchase that they have made from the abovesaid dealers. When the initial burden has been discharged by the appellant, we are of the view that the appellant cannot be treated as the dealer who is liable to pay sales tax as if the transaction is the first sale in their hands. The learned Additional Advocate General submitted that as the department has found some irregularity on the part of the assessing officer, action has been taken against him. However, the fact remains, as on date, the assessment orders passed by the jurisdictional assessing officer in respect of the three registered dealers for the assessment year 2004-05 are still in force. The reason given in the assessment order is that as per the balance sheet, the assessee either manufactured or sold iron and steel from the bought-out goods and the assessee might have brought the goods from Andhra Pradesh or outsid....