TaxTMI 
TaxTMI 
2014 (5) TMI 532
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....o the inspection made by the Enforcement Wing Officers on 01.07.2010, proceedings have been initiated against the assessee for the assessment years 2007-2008 to 2010-2011. Accordingly, pre-assessment notices were issued stating that the assessee is liable to pay tax at 12.5% for the sales of Concrete Sleepers made by it to the Southern Railways in other states instead of 4% paid already. Accordingly, it was asked to show cause as to why the difference in tax with penal interest shall not be recovered. After the receipt of the reply given by the assessee, final assessment orders have been passed by the respondent herein. Challenging the same, the assessee filed the Writ Petitions before this Court in W.P.(MD) Nos.13485 to 13488 of 2010. 4. The learned Single Judge of this Court in and by the orders dated 10.11.2010, was pleased to set aside the assessment order on the sole ground that the assessee will have to be given a personal hearing. Thereafter, the assessee was given a personal hearing and final assessment orders were passed on 20.01.2011. The assessee filed the Writ Petitions once again challenging the final assessment orders. 5. Orders passed by the learned Single Judg....
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....gle Judge, the present Writ Appeals have been filed. 6. Submissions of the Assessee: Shri.Venkatraman, learned Senior Counsel for the assessee vehemently contended that the assessment orders are bereft of particulars and as reasoning is the heart beat and soul of any order having civil consequences, the assessment orders are liable to be set aside. The assessee was not given a proper opportunity. The circulars made in the year 1981 and thereafter in the year 2002 have not been looked into by the Assessing Officer. The circulars issued by the Commissioner are binding on the assessing Officer as a subordinate officer as held by this Court on various occasions. The orders impugned are liable to be set aside for non-application of mind as the Assessing Officer has merely followed the audit proposals. The learned Senior Counsel further submitted that until and unless the circulars governing the field are set aside, varied or modified they are binding on the Assessing Officer. Merely because, there is alternative remedy, the same cannot be a bar for exercising the powers under Article 226 of the Constitution of India. The orders passed by the Assessing Officer are one without jurisdic....
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.... Petitions and also in the Writ Appeals. As rightly contended by the learned Additional Government Pleader, in a Writ Appeal filed against the order of the learned Single Judge, a party cannot be permitted to raise new grounds. We are in respectful agreement with the reasoning of the learned Single Judge in holding that the Writ Petitions filed by the assessee were allowed earlier only with a view to give an opportunity of being heard in person. The appellant was given an opportunity in compliance of the directions of the Court. Therefore, the facts narrated above would clearly show that the only course open to the assessee is to file appeals against the orders of assessment. The Assessing Officer has given reasons in support of the assessment orders. It is one thing to say that an order having civil consequences does not have any reasons and another thing to say the reasons are not proper. If it is a case of the appellant, the reasons are not proper, the only course open is to file appeals against the assessment orders. The assessment orders have been passed taking note of the circulars issued by the Principal Secretary and Commissioner of Commercial Tax, Chepauk, Chennai. A speci....
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....9, which was also a decision in a fiscal law. Commenting on the exercise of wide jurisdiction of the High Court under Article 226, subject to self- imposed limitation, this Court went on to explain: "The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up." (Emphasis added) 37. The decision in Thansingh (supra) is still holding the field. 38. Again in Titaghur Paper Mills Co. Ltd. v. State of Orissa and another (AIR 1983 SC 603) in the background of taxation laws, a three-Judge Bench of this Court apart from reiterating the principle of exercise of writ jurisdict....
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....It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment." 40. In the concluding portion of the judgment it was further held: "The power under Article 226 is conceived to serve the ends of law and not to transgress them." (Para 108 (x), p.635). 41. In view of such consistent opinion of this Court over several decades we are constrained to hold that even if the High Court had territorial jurisdiction it should not have entertained a writ petition which impugns an order of the Tribunal when such an order on a question of law, is appealable before the High Court under Section 35 of FEMA." Hence, for the reasons stated above and taking note of the legal principle enunciated by the Hon'ble Apex Court, we are of the considered view that the orders passed by the learned Single Judge do not warrant interference. 12. Writ Court is a Court of Record: During the course of the arguments, an additional ground was sought to be raised by the appellant trying....
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....open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation. (Per Lord Atkinson in Somasundaran v. Subramanian, AIR 1926 PC 136. We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well- settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhusudan....