TaxTMI 
TaxTMI 
2021 (3) TMI 82
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed Special Government Pleader assisted by Mrs.G.Dhanamadhri, learned Government Advocate accepting notice for the respondents 2. This appeal filed by the appellant - dealer is directed against the order dated 19.11.2020 made in W.P.No.32257 of 2015, which was dismissed along with two other connected matters in W.P.Nos. 33878 and 33879 of 2015 challenging the orders 30.1.2014 and 16.9.2014 levying penalty respectively for the assessment years 2008- 09 and 2013-14 as well as the consequential garnishee orders. 3. W.P.No.32257 of 2015 was filed by the dealer challenging the order dated 06.3.2015 passed by the first respondent - First Appellate Authority, who partly confirmed the orders of the second respondent - Assessing Officer levying....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tution 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, Muzaffarnagar [AIR 1969 SC 556] and also Nivedita Sharma vs. Cellular Operators Association of India & Ors. [2011 (14) SCC 337]. In Thansingh Nathmal & Ors. vs. Superintendent of Taxes, Dhubri & Ors. [AIR 1964 SC 1419], the Constitution Bench of this Court made it amply clear that although the powe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tatutory period specified for filing of appeal had expired long back in August, 2017 itself and the appeal came to be filed by the respondent only on 24.9.2018, without substantiating the plea about inability to file appeal within the prescribed time, no indulgence could be shown to the respondent at all." 6. On a reading of the above extracted paragraphs, it is seen that the Hon'ble Supreme Court, after referring to the decision of the Constitution Bench in the case of Thansingh Nathmal, held that although the power of the High Court under Article 226 of the Constitution is very wide, the Court must exercise self imposed restraint and not entertain the writ petition. Further, in paragraph 15, the Hon'ble Supreme Court observed t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he jurisdiction of the High Courts under Article 226 and that of the Hon'ble Supreme Court under Article 32 of The Constitution of India could not be circumscribed by the provisions of the Enactment (Central Excise Act) and they would certainly have due regard to the legislative intent evidenced by the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the Act. Further, the Court directed that the writ petition would be considered and disposed of in the the light of and in accordance with the provisions of Section 11B of the Central Excise Tax Act and for such a reason, the power under Article 226 of The Constitution of India has to be exercised to effectuate rule of law and not for abrogating ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he ground that the dealer purchased SAP software at concessional rate of tax against C Form Declarations without having included the same in the registration certificate issued under the CST Act. Hence, the Assessing Officer was of the prima facie view that the software was not capable of being used in manufacturing and therefore, had proposed to levy penalty under Section 10A(1) of the CST Act. 13. For the assessment year 2008-09, the appellant - dealer submitted two letters requesting for adjournment to enable them to submit their detailed objection. It appears that the matter was adjourned and the appellant - dealer submitted their objections on 16.10.2012 justifying their purchase of SAP software at concessional rate of tax against C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....een that even in respect of the assessment year 2013-14, no opportunity of personal hearing was granted to the dealer. 16. Thus, we are of the considered view that the case of hand having fallen under one of the exceptional circumstances as mentioned above warranting exercise of jurisdiction under Article 226 of The Constitution of India and as the defect, which has occurred by levying penalty without affording an opportunity of personal hearing would go to the root of the very levy itself, we are inclined to interfere with the impugned order, the assessment orders and remand the matters to the Assessing Officer for a fresh consideration. 17. It is relevant to point out, at the risk of repetition, that W.P. No.32257 of 2015 was dispos....