TaxTMI 
TaxTMI 
2020 (8) TMI 530
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....and validity thereof forthwith quash and set aside the Assessment Order dated 23.03.2020 passed by the Respondent No.4; (b) this Hon'ble Court be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction under Article 226 and 227 of the Constitution of India, ordering and directing the Respondents, their subordinates servants and agents to forthwith (i) withdraw and/or cancel Order dated 23.03.2020 passed by the Respondent No.4 and (ii) refrain from taking any further proceedings or steps in furtherance of and/or in implementation of the Order dated 23.03.2020 passed by the Respondent No.4 for recovery of the amounts so confirmed pending the hearing and final disposal of this Petition, (c ) That pending hearing and final disposal of the above Petition, by an interim order and injunction of this Hon'ble Court, this Hon'ble Court be pleased to (i) stay the operation and effect of the impugned Orders dated 23.03.2020 and (ii) restrain the Respondents, their subordinate servants and agents from taking any further proceedings or steps in furtherance of and/or in implementation of the Orders dated 23.03.2020 ....
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..... 43,49,99,284/- along with interest to the tune of Rs. 26,05,21,888/- and also imposed penalty at Rs. 18,35,95,411/- 2.8 Being dissatisfied with the impugned assessment order passed by the respondent No.4, referred to above, the writ applicant is here before this Court with the present writ application. 3. Submissions on behalf of the writ applicant; 3.1 Mr. Prakash Shah, the learned senior counsel assisted by Mr. Dhaval Shah, the learned counsel appearing for the writ applicant vehemently submitted that the impugned order of assessment has been passed in gross violation of the principles of natural justice inasmuch as the Assessing Officer declined to even look into the judgments of the Supreme Court and this High Court on various issues. Mr. Shah would submit that he is very much conscious of the fact that the impugned assessment order is appealable as a statutory appeal has been provided under the GVAT Act before the First Appellate Authority. However, as the impugned assessment order is in gross violation of the principles of natural justice, this writ application, under Article 226 of the Constitution of India, may be entertained. 3.2 Mr. Shah, the learned senior counsel,....
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....entry at the highest rate is contrary to the judgment of the Supreme Court in the case of State of Karnataka vs. Durga Projects, 2018 (10) GSTL 513 (SC). 3.5 Mr. Shah would submit that non-consideration of the submissions canvassed on behalf of the writ applicant not only demonstrates non-application of mind but also resulted in a serious miscarriage of justice. Mr. Shah, in the last, submitted that as held by this High Court in the case of U.M. Cables vs. Union of India, reported in 2017 347 ELT 78 (Guj.) and Larsen & Toubro Ltd. vs. Union of India, 2017 (52) STR 457 (Guj.) , despite the existence of alternate remedy in the form of a statutory appeal, a writ application can be entertained if the impugned order passed by the authority is wholly without jurisdiction or against the principles of natural justice or contrary to the statutory provisions of law. In such circumstances, referred to above, Mr. Shah prays that there being merit in his writ application, the same may be allowed and the impugned assessment order may be quashed and set aside. Mr. Shah prays that the matter deserves to be remitted to the respondent No.4 for fresh hearing with appropriate directions to take into ....
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....03, which reads thus; "73. Appeal (1) An appeal from every original order, not being an order mentioned in section 74, passed under this Act or the rules, shall lie,- (a) If the order is made by a an Assistant Commissioner or Commercial Tax Officer, or any other officer subordinate thereto, to the Deputy Commissioner; (b) If the order is made by a Deputy Commissioner, to the Joint Commissioner; (c) If the order is made by a joint Commissioner, Additional Commissioner or Commissioner, to the Tribunal. (2) In the case of an order passed in appeal by a Deputy Commissioner or, as the case may be, by a Joint Commissioner, a second appeal shall lie to the Tribunal. (3) Subject to the provisions of section 84, no appeal shall be entertained unless it is filed within sixty days from the date of communication of the order appealed against. (4) No appeal against an order of assessment shall ordinarily be entertained by an appellate authority, unless such appeal is accompanied by satisfactory proof of payment of the tax in respect of which an appeal has been preferred: Provided that an appellate authority may, if it thinks fit, for reasons to be recorded in writing, entertai....
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....se for not preferring an appeal against the order in respect of which an application for revision is made. (3) No order shall be passed under this section which adversely affects any person, unless such person has been given reasonable opportunity of being heard.[****] (4) Where the Commissioner or the Tribunal rejects any application for revision under this section, the Commissioner or, as the case may be the Tribunal shall record the reasons for such rejection." 8. Section 78 provides for appeal to the High Court. Section 78 read thus; "[78. Appeal to High Court. - (1) An appeal shall lie to the High Court from Court every order passed in appeal by the Tribunal, if the High Court is satisfied that the case-involves a substantial question of law. (2) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard on the question so formulated and the respondent shall, in the hearing of the appeal, be allowed to argue that the case does no....
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.... petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under subsection (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under subsection (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. 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, 356] in the following passage: There are three classes of cases in which a liability may be established founded upon statute. . . . But there is a third....
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....ion of India, the same is no more res integra. Even though the High Court can entertain a writ petition against any order or direction passed/action taken by the State under Article 226 of the Constitution, it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law (see Baburam Prakash Chandra Maheshwari vs. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar8 and also Nivedita Sharma vs. Cellular Operators Association of India & Ors.). In Thansingh Nathmal & Ors. vs. Superintendent of Taxes, Dhubri & Ors., the Constitution Bench of this Court made it amply clear that although the power of the High Court under Article 226 of the Constitution is very wide, the Court must exercise selfimposed restraint and not entertain the writ petition, if an alternative effective remedy is available to the aggrieved person. In paragraph 7, the Court observed thus: "7. Against the order of the Commissioner an order for reference could have been claimed if the appellants satisfied the Commissioner or the High Court that a question of law arose out of the order. But the procedure provided by the Act ....
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....n-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See: State of U.P. vs. Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433; Harbanslal Sahnia vs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107; State of H.P. vs. Gujarat Ambuja Cement Ltd ., (2005) 6 SCC 499). 16. The Constitution Benches of this Court in K.S. Rashid and Sons vs. Income Tax Investigation Commission, AIR 1954 SC 207; Sangram Singh vs. Election Tribunal, Kotah, AIR 1955 SC 425; Union of In....
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....lly 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." 13. We should not ignore the observations made by the Supreme Court in Para-19 of Chhabil Dass (supra). We may quote thus; "Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the f....