9911796707
TMI Blog1985 (3) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... , 3rd August, 1984, and 8th October, 1984. Finally exhibit PI preassessment notice dated 25th January, 1985, was received by the petitioner on 2nd February, 1985. The petitioner was given 7 days time to file its objections. The petitioner made an attempt to get extension of time by exhibit P2. By exhibit P3 order dated 6th February, 1985, it was rejected. So, the petitioner filed objections dated 8th February, 1985, on 11th February, 1985. Since 9th February, 1985, was a second Saturday and a declared holiday and 10th was a Sunday, the objections could be filed only on 11th February, 1985. Assessment orders dated 9th February, 1985, evidenced by exhibits P13 to P21, were served on the petitioner on 16th February, 1985. The petitioner filed appeals against all the nine assessment orders before the Deputy Commissioner of Agricultural Income-tax and Sales Tax (Appeals), Quilon-second respondent herein-on 28th February, 1985. Petitions for stay of recovery proceedings were also filed. Since the matter was urgent, the petitioner moved a petition for early hearing of the stay petitions. The petitioner was heard on 7th March, 1985, and exhibit P6 order dated 11th March, 1985, was passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the discretionary jurisdiction of this Court under article 226 of the Constitution of India as a parallel remedy and assail the assessment orders. That will in effect deprive the appellate authority of its jurisdiction to dispose of the appeals pending before it. Strong reliance was placed on a Division Bench decision reported in Kunjahammad Haji v. State of Kerala 1960 KLT 930 (Ker) and also on the Supreme Court decision reported in Jai Singh v. Union of India AIR 1977 SC 898 to contend that it is not open to the petitioner to invoke the extraordinary jurisdiction of this Court under article 226 of the Constitution and assail the assessment orders when such orders are pending in appeals before the statutory authorities. Learned AdvocateGeneral also brought to our notice the decision reported in Assistant Collector of Central Excise v. Dunlop India Ltd. AIR 1985 SC 330 wherein the Supreme Court has adverted to its earlier decisions, Siliguri Municipality v. Amalendu Das AIR 1984 SC 653 and Titaghur Paper Mills Co. Ltd. v. State of Orissa [1983] 53 STC 315 (SC); AIR 1983 SC 603 and other decisions, wherein the guidelines in the matter regarding the scope of interference under arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal of the writ petition by the High Court, the appellant has filed a suit, in which he has agitated the same question which is the subject-matter of the writ petition. In our opinion, the appellant cannot pursue two parallel remedies in respect of the same matter at the same time." These decisions certainly support the arguments of the learned AdvocateGeneral, that at this stage when the appeals filed by the petitioner are pending before the second respondent, we should not exercise the discretionary jurisdiction of this Court under article 226 of the Constitution of India. We may also add that the first appellate authority exercising jurisdiction under the Kerala General Sales Tax Act, has got the power even to "enhance" an assessment [section 34(3)(a)(i) of the Act]. This is a special jurisdiction, unlike ordinary, appellate authorities. "........... his competence is not restricted to examining those aspects of the assessment which are complained of by the assessee; his competence ranges over the whole assessment and it is open to him to correct the Income-tax Officer not only with regard to a matter raised by the assessee but also with regard to a matter which has been con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings in this case will result in the crippling of the company itself and throw out of employment the innumerable workmen. Counsel argued that public interest requires that this is a matter in which the petitioner should be allowed sufficient time to pay the huge amount demanded, in instalments. Section 23(2) of the Kerala General Sales Tax Act provides as follows: "(2) Any tax assessed or any other amount due under this Act from a dealer or other person may, without prejudice to any other mode of recovery, be recovered- (a) as if it were an arrear of land revenue (b) on application to any Magistrate, by such Magistrate, as if it were a fine imposed by him." Further mode of recovery is provided in section 25 of the Act. It is common ground, that the recovery proceedings initiated at present, are sanctioned by the relevant statute. No arguments were addressed attacking recovery proceedings as "ultra vires" or "unauthorised ". Nor was it urged, that initiation of more than one mode of recovery proceedings, simultaneously, as such is illegal. We are of the view, that, primarily it is for the revenue to resort to any one or more of the modes of recovery, as authorised by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent has not alleged in his writ petition any specific particulars in support of his case that the Income-tax Officer has exercised his discretion in an arbitrary manner. In paragraph 12(b) of the writ petition the respondent had merely said that 'the order of the Income-tax Officer made under section 220 was arbitrary and capricious'. No other particulars were given by the respondent in his writ petition to show in what way the order was arbitrary or capricious. In the counter-affidavit the allegations of the respondent have been denied in this respect. We are of opinion that, in the absence of specific particulars by the respondent in his writ petition, it is not open to the High Court to go into the question whether the Income-tax Officer has arbitrarily exercised his discretion." In the light of the above, the general and vague complaint in the original petition that the second respondent has acted "mechanically" and "failed to act judicially" and has failed to state any reason, etc., is without force. Moreover, there is no prayer in the original petition to quash or annul exhibit P6 order. We consider that this is also relevant in the context. So long as exhibit P6 order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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