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TMI Blog1987 (7) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... e proceed to appreciate the contentions raised by the parties in this behalf, it would be useful to refer to the material facts giving rise to this petition. 3.. The petitioners are registered dealers under the Act. The petitioners have their head office in the State of Kerala and a branch at Indore. The petitioner deal in betel-nuts and black pepper. With regard to the business carried on by the petitioners at Indore, the petitioners are liable to pay tax under the Act. The petitioners submitted returns under the Act for the assessment year 1983-84 and disclosed a total turnover of Rs. 92,88,728.49. In exercise of powers conferred by the Act, a search was carried out by the Flying Squad of the Sales Tax Department at the business premises of the petitioners and also at the premises taken on rent by the petitioners for the residence of their employees. During the search, incriminating documents showing evasion of sales tax on a very large scale was detected and incriminating documents were seized. During investigation, it was revealed that four bank accounts were opened in fictitious names and that transactions amounting to Rs. 1,50,47,853.90 had taken place through those bank ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the wrongful acts complained of. The petitioners have the right to prefer an appeal before the prescribed authority under sub-section (1) of section 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-section (3) of section 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 section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under article 226 of the Constitution. It is now well-recognised that where a right or liability is created by a statute, which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of." These observations were referred to by the Supreme Court in another decision reported in Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. AIR 1985 SC 330, where it was further observed as follows: "In Titaghur Paper Mills Co. Ltd. v. State of Orissa [1983] 53 STC 315 (SC); ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of tax could be stayed by the appellate authority, While under the M.P. General Sales Tax Act, 1958, a part of the amount has got to be paid by the appellant as a requisite condition for preferring an appeal. The learned counsel for the petitioner also referred to the decision of the Supreme Court in Filterco v. Commissioner of Sales Tax, M.P. [1986] 61 STC 318; [1986] 19 VKN 150 and contended that as a substantial portion of the tax had to be deposited before an appeal or revision could be filed, the petition under article 226 of the Constitution could not be dismissed in limine. 6.. Now the decision of the Supreme Court in [1986] 61 STC 318 [1986] 19 VKN 150 (Filterco v. Commissioner of Sales Tax) is distinguishable on facts. In that case, a petition was filed in the High Court from a decision of the Commissioner on a disputed question referred to him under section 42-B of the Act. The Supreme Court held that as an appeal from the decision of the assessing authority would be a mere exercise in futility as the Appellate Assistant Commissioner would be bound by the decision of the Commissioner, which was his superior authority, the High Court should have examined the merits of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re filing an appeal is meagre, even if he is able to make out a case that the statutory remedy is entirely ill-suited and will be an exercise in futility in his case. Therefore, the crux of the matter is not whether the amount of tax or penalty is large or small but whether the petitioner is able to make out a case that the statutory remedy is ill-suited to meet the demands of extraordinary situations arising in his case. 8.. It was urged that the assessment order passed against the petitioners was not under the Act because the notice served on the petitioners to show cause was not in the form prescribed by rule 32 of the Rules framed under the Act but in form XVI. Now rule 32 itself provides that the notice required by sub-section (2) of section 18 of the Act shall, as far as may be in the form prescribed. The real question is whether prejudice, if any, is caused to the petitioners by the notice given to them. Even assuming that the notice was not in the prescribed form, it cannot be held that the assessment of the petitioners was not framed under the Act and hence the statutory remedy provided by the Act is not available to the petitioners. 9.. It was then vehemently conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... berately, therefore, abstained from appearing at the earlier stages of assessment proceedings; that the application for obtaining a copy of the report of the Flying Squad was made after excessive delay and that as the period of limitation for framing assessment was expiring on 31st December, 1986, material portions of that report were incorporated in a further show cause notice issued to the petitioner on 12th December, 1986, so that the petitioners could not have any real grievance in that behalf. As we have already observed, the question as to whether in the circumstances of a particular case, there was or was not a reasonable opportunity of hearing, is a question of fact. The appellate authorities under the Act shall, if the question is raised, before them, examine that matter and decide whether the case deserves to be remanded for further enquiry. It was urged that respondent No. 1 relied on a statement made by an employee of the petitioners, which was shown to the petitioners on the last date of hearing and that no opportunity to cross-examine that person was given. We were taken through the entire order of assessment passed by respondent No. 1 but it cannot be held that that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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