TaxTMI 
TaxTMI 
2021 (10) TMI 132
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....ed of on 16.06.2017 by another Hon'ble learned single Judge directing the respondent to pass final assessment order. It is not necessary to dilate further on the same as it is not imperative for appreciating this Order. Suffice to say that pursuant to the order made in the earlier writ petition, the impugned order has been made by the sole respondent. 4. Notwithstanding very many averments in the writ affidavit and very many grounds raised in the writ affidavit, Mr.D.Vijayakumar, learned counsel for writ petitioner makes one focused submission and that one focused submission is proper personal hearing has not been given to the writ petitioner. Elaborating his submission on this, learned counsel drew the attention of this Court to a notice dated 28.06.2017, wherein the writ petitioner was given an opportunity of personal hearing post aforementioned earlier writ order. Writ petitioner responded to the aforementioned notice vide communication dated 25.07.2017 requesting 15 days time to file detailed objections. This notice for personal hearing and response from writ petitioner are not captured in the impugned order, but the learned counsel for writ petitioner very fairly submit....
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....rson objecting to an order passed by the appropriate authority under section 22, section 24, section 26, sub-sections (1), (2), (3) and (4) of section 27, section 28, section 29, section 34 or sub-section (2) of section 40 other than an order passed by an [Deputy] Commissioner (Assessment) may, within a period of thirty days from the date on which the order was served on him, in the manner prescribed, appeal to the Appellate [Deputy] Commissioner having jurisdiction: Provided that the [Appellate Deputy Commissioner] may, within a further period of thirty days admit an appeal presented after the expiration of the first mentioned period of thirty days if he is satisfied that the appellant had sufficient cause for not presenting the appeal within the first mentioned period: Provided further that in the case of an order under section 22, section 24, section 26, subsections (1), (2), (3) and (4) of section 27, section 28 or section 29, no appeal shall be entertained under this sub-section unless it is accompanied by satisfactory proof of the payment of the tax admitted by the appellant to be due or of such instalments thereof as might have become payable, as the case m....
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....an absolute rule. In other words, alternate remedy rule is discretionary and it is a self imposed restraint qua writ jurisdiction. What is of significance is, vide these case laws, it has been repeatedly held that alternate remedy rule has to be applied with utmost rigour when it comes to fiscal Statutes. 10. Relevant paragraph in Dunlop case is paragraph No.3 and relevant portion of the same reads as follows: '3. ....... Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions un....
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....ve serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.' (underlining made by this Court to supply emphasis and highlight) 12. Be that as it may, most recent pronouncement of Hon'ble Supreme Court in Commercial Steel Limited case [Civil Appeal No 5121 of 2021, The Assistant Commissioner of State Tax and Others Vs. M/s Commercial Steel Limited] was rendered on 03.09.2021. Relevant paragraphs are Paragraph Nos.11 and 12 and the same read as follows: '11 The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to ....
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....wn this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.' Paragraph No.7 of Harbanslal principle: '7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1] .) The present case attracts applicability of the first two contingencies. Moreover, as noted, the ....