2004 (7) TMI 625 - HC - VAT and Sales Tax

Summary

Issues:
- Writ petition under article 226 of the Constitution of India challenging an assessment order for the assessment year 1995-96.
- Bypassing the appeal provision under the Tamil Nadu General Sales Tax Act, 1959.
- Consideration of discretionary powers under article 226 of the Constitution of India.
- Comparison with a judgment of the Supreme Court regarding the reopening of assessments based on change of opinion.
- Decision on the admission of the writ petition and directions for preferring a regular appeal.

Analysis:
1. The writ petition was filed under article 226 of the Constitution of India challenging an assessment order for the assessment year 1995-96. The petitioner sought a writ of certiorari to quash the assessment order. During the admission stage, the Court noted the existence of an appeal provision to challenge the impugned order. The petitioner's reason for bypassing the appeal provision was that it was deemed ineffective, without any statutory bar for filing the writ petition. The Senior Counsel emphasized the writ petition's admissibility despite the availability of an alternative remedy.

2. The Court highlighted the statutory provision under the Tamil Nadu General Sales Tax Act, 1959, which mandated the availability of a regular appeal as an alternative remedy. The Court emphasized that bypassing the statutory remedy through a writ petition should only occur in rare cases where justice would be defeated otherwise. The appellate authority designated under the Act was deemed capable of settling all questions raised in the writ petition, making it unnecessary for the Court to interfere when an alternative remedy existed.

3. The Senior Counsel referenced a Supreme Court judgment regarding the reopening of assessments based on a change of opinion. However, the Court distinguished the facts of the case at hand from the precedent cited, asserting that the circumstances surrounding the writ petition were distinct and best addressed by the appellate court. Consequently, the Court decided that the writ petition was not entitled to admission and should be dismissed, directing the petitioner to pursue a regular appeal before the appellate authority.

4. The Court dismissed the writ petition but granted permission for an extension of time to file a regular appeal, acknowledging the petitioner's efforts in approaching the Court. The appellate authority was directed to entertain the appeal if filed within thirty days and to consider any necessary interim orders during the appeal process. The Court made it clear that costs were not to be awarded in this case, and a related miscellaneous petition was also dismissed.

In conclusion, the Court's decision emphasized the importance of adhering to statutory remedies and the limited circumstances under which a writ petition could bypass such remedies. The judgment underscored the need for utilizing the available appellate mechanisms before seeking judicial intervention through writ petitions.