TaxTMI 
TaxTMI 
1983 (4) TMI 49
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....bruary 16, 1983. The connected petitions under art. 32 of the Constitution are by an officer of the company challenging the two orders of assessment. By one of the writ petitions, the petitioners challenged the validity of the order of assessment under the Central Sales tax Act, 1956, for the assessment year 1980-81 passed by the Asst. STO, Cuttack If Circle, Cuttack dated February 16, 1983, under r. 15 of the Central Sales Tax (Orissa) Rules, 1957, treating the gross turnover of Rs. 7,13,94,903.63 as returned by the petitioners to be their taxable turnover and the tax payable thereon at 10% at Rs. 71,39,490.36. By the other, the petitioners challenged the validity of an order of assessment under the Orissa Sales Tax Act, 1947, for the assessment year 1980-81 passed by the Asst. STO, Cuttack II Circle, Cuttack, dated February 16, 1983, under sub-s. (4) of s. 12 of the Orissa Sales Tax Act, 1947, treating the gross turnover of Rs. 2,02,07,852.65 as returned by the petitioners to be their taxable turn over and the tax payable thereon at 7% at Rs. 14,14,549.71. It appears from the impugned orders of assessment that proceedings under r. 12(5) of the Central Sales Tax (Orissa) Rules, ....
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....emand for payment of a sum of Rs. 13,06,069.60. It would thus appear that by the impugned orders of assessment the petitioners are faced with a total demand of Rs. 56,57,171.49 for the assessment year 1980-81. The petitioners instead of preferring appeals under sub-s. (1) of s. 23 of the Act filed petitions before the High Court under art. 226 of the Constitution challenging the validity of the two orders of assessment. The only contention raised before the High Court was that the impugned orders of assessment being a nullity, the petitioners were entitled to invoke the extraordinary jurisdiction of the High Court under art. 226 of the Constitution, but the High Court was not satisfied that this was a case of inherent lack of jurisdiction. The High Court, while dismissing the writ petitions, observed : " Having heard the learned counsel for both the parties and having gone through the records, we are not inclined to interfere with the impugned order(s) in exercise of our extraordinary jurisdiction since there is right of appeal against the same. It is contended on behalf of the petitioner that the impugned order being a nullity is entitled to invoke our extraordinary jurisdiction....
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.... appellate authority under sub-s. (1) of s. 23 of the Act. We are constrained to dismiss these petitions on the short ground that the petitioners have an equally efficacious alternative remedy by way of an appeal to the prescribed authority under sub-s. (1) of s. 23 of the Act, then a second appeal to the Tribunal under sub-s. (3)(a) thereof, and thereafter in the event the petitioners get no relief, to have the case stated to the High Court under s. 23 of the Act. In Rakigh Investment Co. Ltd. v. Governor-General in Council [1947] LR 74 IA 50 ; 15 ITR 332 (PC), Lord Uthwatt J., in delivering the judgment of the Board, observed that in the provenance of tax where the Act provided for a complete machinery, which enabled an assessee to effectively raise in the courts the question of the validity of an assessment, denied an alternative jurisdiction to the High Court to interfere. It is true that the decision of the Privy Council in Raleigh Investment Co.'s case was in relation to a suit brought for declaration that an assessment made by the ITO was a nullity, and it was held by the Privy Council that an assessment made under the machinery provided by the Act, even if based on a provi....
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....nd that are referred to it. Further, an appeal to this court under s. 66A(2) does not enlarge the scope of the jurisdiction of this court as this court can only do what the High Court can under s. 66. It would, therefore, appear that the majority decision in Venkataraman's case rests on the principle that: (i) An ultra vires provision cannot be regarded as a part of the Act at all, and an assessment under such a provision is not " made under the Act " but is wholly without jurisdiction and is not directed by s. 67 of the Act. And (ii) The question whether a provision is ultra vires or not cannot be decided by any of the authorities created by the Act and, therefore, cannot be the subject-matter of a reference to the High Court or a subsequent appeal to this court. No such question arises in a case like the present where the impugned orders of assessment are not challenged on the ground that they are based on a provision which is ultra vires. We are dealing with a case in which the entrustment of power to assess is not in dispute, and the authority within the limits of his power is a Tribunal of exclusive jurisdiction. The challenge is only to the regularity of the proceedings be....
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....t be said that he acted in violation of the rules of natural justice. The question whether another adjournment should have been granted or not was within the discretion of the learned STO and is matter which can properly be raised only in an appeal under subs. (1) of s. 23 of the, Act. All that this court laid down in Mohammad Nooh's case (1958] SCR 595, is that, the rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than a rule of law; in other words, it does not bar the jurisdiction of the court. Under the scheme of the Act, there is a hierarchy of authorities before which the 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 sub-s. (1) of s. 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 sub-s. (3) of s. 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 s. 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and th....