TaxTMI 
TaxTMI 
2008 (9) TMI 914
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....lternate remedy, merits of the cases canvassed by the learned counsel for the petitioner-company and by the learned Additional Government Pleader are not considered and decided in this order, in any manner." Certain relevant facts may be noted hereunder: The writ petitioner, who is the appellant herein, claims to be a private limited company and is doing heavy civil contract works like infrastructure road construction for National Highways Authority of India, and is a registered dealer under the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as "the said Act"). The petitioner is also doing certain quarry works. The accounts of the petitioner were called for by the second respondent, viz., the Commercial Tax Officer, Salem Town, North Circle, Salem for the assessment year 2003-04. Pursuant thereto the petitioner produced the accounts and thereafter, the second respondent issued a preassessment notice granting exemption towards the second sales of petrol and diesel, and labour charges incurred in the execution of works contract. Whereupon the second respondent in his notice proposed to assess the petitioner's taxable turnover of Rs. 7,55,39,983, and to that the....
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....sary records that the proposed notice is not correct." Admittedly, personal hearing was not given to the petitioner before the impugned order of assessment was passed. Before the learned judge of the writ court the stand of the Revenue was that adequate opportunity of hearing was given inasmuch as the petitioner was given the opportunity to show cause and principles of natural justice are not violated. Therefore, instead of filing a writ petition, the petitioner should have appealed against the assessment order before the Appellate Assistant Commissioner under section 31 of the said Act. Attention of the writ court was also drawn to section 31(3) of the said Act which authorises the Appellate Assistant Commissioner to dispose of the appeal. Some discussion also appears in the order under appeal on the question whether disputed questions of fact can be gone into by a writ court. But, ultimately, the learned judge after considering several judgments, dismissed the writ petitions, inter alia, on the sole ground of non-exhaustion of alternative remedy against the assessment order. The said finding of the learned judge is assailed before the appeal court on various grounds which are ....
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....rtunity to show cause is considered bereft of the circular, then it may not be held that it includes an opportunity of personal hearing. But then in a case where the question involved is one of determination of certain factual disputes, which are a bit complex and not free from controversy, the court has to consider whether principles of fairness would encompass personal hearing within the concept of "reasonable opportunity to show cause" under section 16(1)(a) of the said Act. Reference in this connection may be made to Professor Wade's Treatise on Administrative Law (9th Edition). At page 517 of the said treatise the learned author has emphasised that a "hearing will normally be an oral hearing". But, in some cases, it is sufficient to give an opportunity to make a representation in writing provided that no adverse materials are disclosed and further the demands of fairness are sufficiently met. Similar views have been expressed in De Smith's Judicial Review of Administrative Action, (6th Edition) at page 397. The learned author opined that a fair hearing does not necessarily mean that there must be an opportunity to be heard orally, but one is entitled to an oral heari....
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....ppropriate cases where complex and difficult questions requiring familiarity with technical problems are raised, personal hearing is given, it would conduce to better administration and more satisfactory disposal of the grievances of citizens. . .". This view of the Supreme Court in 1971 is in accord with the views expressed in 2002 by Laws L.J. in Sengupta (2002) EWCA Civ 1104. In the case of Ram Chander v. Union of India reported in AIR 1986 SC 1173, the learned judges of the Supreme Court held that though the expression "appellate authority shall consider" may not include an opportunity of hearing, but ". . . objective consideration is possible only if the delinquent servant is heard and given a chance to satisfy the authority regarding the final orders that may be passed on his appeal. Considerations of fair-play and justice also require that such a personal hearing should be given." In State of U.P. v. Maharaja Dharmander Prasad Singh AIR 1989 SC 997 in paragraph 29 at pages 1010 and 1011 of the Report, the learned judges held that where the grounds require determination of factual matters of some complexity the statutory authority should in the facts of the case have afford....
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.... ". . .administrative construction (i.e., contemporaneous construction placed by administrative or executive officers charged with executing a statute) generally should be clearly wrong before it is overturned: such a construction, commonly referred to as practical construction, although non-controlling, is nevertheless entitled to considerable weight, it is highly persuasive." This court, therefore, holds that the provision of section 16(1)(a) of the said Act has to be construed in accordance with the said circular which is by way of contemporanea expositio. So when a specific demand is made for personal hearing the reasonable opportunity of showing cause should include the same in the interest of fairness in procedure. The finding of the learned single judge that the writ petition cannot be entertained in view of the non-exhaustion of alternative remedy by the petitioner cannot be sustained in the facts of the case. It is well-settled that the existence of an alternative remedy does not oust the jurisdiction of a writ court under article 226 of the Constitution. Such jurisdiction is plenary in nature. But the existence of alternative remedy operates as an automatic restrain o....