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TMI Blog1991 (1) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... D dated June 2, 1981) and so he is entitled to the benefit of lower rate of tax on the purchase of rubber made by him for use of such rubber in his units for the manufacture of finished products. The complaint voiced in the original petitions is that such benefit has been denied to him improperly and illegally. In O.P. No. 8154 of 1989 (Writ Appeal No. 587 of 1990) the petitioner prayed for a direction to the first respondent (assessing authority) to extend the benefits of S.R.O. No. 585/80 and for a declaration that rule 21(9) of the Kerala General Sales Tax Rules (in short "the Rules") is ultra vires the Act and is void and unenforceable and that the first respondent (assessing authority) has no power to make the provisional assessment on the monthly return submitted by the petitioner. Exhibit P8 dated September 4, 1989, is the "provisional" monthly assessment made on the petitioner for the months of April to July, 1989, which was attacked as illegal and devoid of jurisdiction. In O.P. No. 219 of 1990 (Writ Appeal No. 591 of 1990) the petitioner prayed for the issue of a writ of certiorari to quash exhibit P2 (provisional assessment for August, 1989 dated October 10, 1989), P2(a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . No. 240 of 1990, held that the judgment delivered by him in O.P. No. 8154 of 1989 shall be kept in view by the third respondent, who shall dispose of exhibit P9 appeal expeditiously. Aggrieved by the judgments rendered in the two original petitions by the learned single Judge, the Revenue has come up in writ appeals. 3.. In O.P. No. 240 of 1990, the Revenue has filed a detailed counteraffidavit, dated June 8, 1990. According to the Revenue the assessee is not entitled to the reduced rate of tax on its purchase turnover of rubber latex. The Revenue has also stated that exhibit P8 order is valid and legal since, according to it, the assessments (provisional and regular) were made in accordance with law and the assessing authority passed the orders properly. Exhibit P4 assessment order is also stated to be one in accordance with law. The Revenue has taken up the plea that the petitioner has an alternative remedy against exhibit P8 (by way of appeal) and also against the provisional assessment orders (by way of revisions) rejecting its claim of exemption of lower rate of tax. According to the Revenue, the petitioner is not entitled to invoke the extraordinary jurisdiction of this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also submitted that from the provisional assessments an appeal will not lie; a revision will lie. But according to counsel, the very provision, under which the provisional assessments were made, viz., rule 21(9) of the Rules, is ultra vires the Act and the assessing authority has no power to make the provisional assessment, on the basis of monthly returns submitted by the petitioner. In this view, it was contended that all the provisional assessments are void and the original petition assailing such provisional assessments is competent. Both sides brought to our notice a few decisions in support of their rival contentions. 5.. In both the original petitions a declaration is sought that rule 21(9) of the Rules is ultra vires the Act and the assessing authority has no power to make provisional assessment on the basis of the monthly returns submitted by the petitioner. The basis for stating that rule 21(9) of the Rules is ultra vires is that section 18, providing for provisional assessment, was omitted from the statute with effect from April 1, 1982 by the Kerala General Sales Tax (Amendment) Act, 1983 and after the omission or deletion of the said section, a provisional assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt orders, by way of revisions, before the statutory authority, we see no reason as to why this Court should, in the exercise of extraordinary jurisdiction under article 226 of the Constitution of India, scrutinise the legality of the provisional assessment orders. There are no extraordinary circumstances in this case. The respondent (assessee) has no case that the revisional authorities are incompetent in law to construe the impact of the notifications or that there was any denial of natural justice by the assessing authority before passing the provisional assessments. In such cases, the respondent (assessee) should pursue the statutory remedy by way of revision and was not justified in invoking the extraordinary discretionary jurisdiction of this Court under article 226 of the Constitution of India-See Titaghur Paper Mills Co. Ltd. v. State of Orissa [1983] 53 STC 315 (SC); AIR 1983 SC 603. Again in Assistant Collector of Central Excise v. Dunlop India Ltd. [1985] 154 ITR 172 at page 176; AIR 1985 SC 330 at page 332, paragraph 3, the Supreme Court stated the law thus: "Article 226 is not meant to short circuit or circumvent statutory procedures. It is only where statutory remedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation as he did, adjudicating the scope of the notification on the merits. This is a fit and proper case, in which the learned single Judge should have directed the assessee to pursue the statutory remedy open to him. In proceeding to adjudicate the matter on the merits, the learned single Judge failed to apply the binding decisions of the Supreme Court and the earlier Bench decisions of this Court, which, we have referred to above. The discretionary jurisdiction vested in this Court under article 226 of the Constitution of India has not been exercised in accordance with law and as interpreted by the binding decisions of the Supreme Court and of this Court, as stated above. On these grounds, we set aside the judgments under appeals. 10.. We hold that the original petitions are not maintainable. However, if the assessee files revisions from the provisional assessment orders within 30 days from today before the appropriate authority, the said revisions shall be disposed of on the merits, as if they are filed within time. The assessee is free to pursue exhibit P9 appeal. It is open to the revisional and appellate authorities to interpret the relevant notifications and dispose of the ..... 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