TaxTMI 
TaxTMI 
2017 (12) TMI 263
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....,611/- for the period from 1.9.2005 to 31.3.2012 on best judgment basis. The petitioner filed an appeal before respondent No.2, which was partly allowed, partly remanded and partly dismissed by order dt.24.3.2014. In the process, respondent No.2 has directed respondent No.3 to examine the record in respect of the tax of Rs. 11,22,885/- while permitting the petitioner to produce evidence before the said respondent. In pursuance of the remand, respondent No.3 has issued a show cause notice dt.19.01.2015 proposing to levy tax of Rs. 11,22,885/-. After considering the objections filed by the petitioner on 20.3.2015, respondent No.3 has passed a fresh assessment order on 18.3.2015 confirming the levy of tax of Rs. 11,22,885/-. Assailing the said assessment order, the petitioner again filed an appeal before respondent No.2. On considering the appeal on merits, respondent No.2 has dismissed the same on 31.3.2017. 3. At this stage, it needs to be noted that against every order passed by the Appellate Deputy Commissioner (CT), there is a remedy of appeal before the A.P. VAT Tribunal under Section 33 of the A.P. Value Added Tax Act, 2005. The petitioner, however, bypassed the said remedy an....
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.... 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." A three-Judge Bench of the Supreme Court in Titaghur Paper Mills Co. Ltd. (1983) 2 SCC 433 held: "11. ... 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. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford [(1859) 6 CBNS 336 : 141 ER 486] in the following passage: (ER p. 495) '... There are three classes of cases in which a liability may be established founded upon a statute. ... But there is a third class viz. where a 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 th....
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....1964) 6 SCR 261 : AIR 1964 SC 1006] held that the remedy provided in a writ jurisdiction is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defence legitimately open in such actions. The power to give relief under Article 226 of the Constitution is a discretionary power. Similar view has been reiterated in N.T. Veluswami Thevar v. G. Raja Nainar [1959 Supp (1) SCR 623 : AIR 1959 SC 422] ; Municipal Council, Khurai v. Kamal Kumar [(1965) 2 SCR 653 : AIR 1965 SC 1321] ; Siliguri Municipality v. Amalendu Das [(1984) 2 SCC 436 : 1984 SCC (Tax) 133 : AIR 1984 SC 653] ; S.T. Muthusami v. K. Natarajan [(1988) 1 SCC 572 : AIR 1988 SC 616] ; Rajasthan SRTC v. Krishna Kant [(1995) 5 SCC 75 : 1995 SCC (L&S) 1207 : (1995) 31 ATC 110 : AIR 1995 SC 1715] ; Kerala SEB v. Kurien E. Kalathil [(2000) 6 SCC 293 : AIR 2000 SC 2573] ; A. Venkatasubbiah Naidu v. S. Chellappan [(2000) 7 SCC 695] ; L.L. Sudhakar Reddy v. State of A.P. [(2001) 6 SCC 634] ; Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra [(2001) 8 SCC 509] ; Pratap Singh v. State of Haryana [(2002) 7 SCC 484 : 2002 SCC (L&....
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....f the Supreme Court, upon copious reference to the judicial precedents, summarised the law in paragraph 36 of the report, as under: (i) The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including the Armed Forces Tribunal Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India.(Refer: L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997 SCC (L&S) 577] and S.N. Mukherjee v. Union of India [(1990) 4 SCC 594 : 1990 SCC (Cri) 669]). (ii) The jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of the Acts and would exercise their jurisdiction consistent with the provisions of the Act. (Refer: Mafatlal Industries Ltd. [(1997) 5 SCC 536]). (iii) When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Refer: Nivedita Sharma v. Cellular Operato....
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....m Singh v. Election Tribunal AIR 1955 SC 425 speaking for the Court stated: "14. That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not, act as courts of appeal under Article 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognised lines and not arbitrarily; and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case." In State of Maharashtra v. Digambar (1995) 4 SCC 683 it was held: "....
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....e Act and would exercise their jurisdiction consistent with the provisions of the enactment." In the concluding portion of the judgment it was further held: "(x) ... The power under Article 226 is conceived to serve the ends of law and not to transgress them." The ratio that could be culled out from the judgment referred to above is that when an Act provided for remedies and created fora for availing such remedies, a litigant cannot be permitted to frustrate the legislative intent of providing alternative remedies under Article 226 of the Constitution of India. This judgment is therefore not of any help to the petitioner. 17. Here is a case where the petitioner has never raised a whisper about the lack of jurisdiction on the part of respondent No.4 for passing an assessment order for the period between 1.9.2005 and March, 2009. Not only in its objections filed before the Assessing Officer before passing of the initial assessment order, but also in the first round of appeal filed by it, before respondent No.3 and in the second round of appeal filed before respondent No.2 after the remand, the petitioner has failed to raise the plea of limitation. Limitation being a mixed qu....