9911796707
TMI Blog1999 (3) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... Commercial Taxes withdrew the transfer order dated May 10, 1990 with the result the High Court did not go into the various questions raised. Liberty was reserved with the authority to pass fresh order as may be permissible to it under the law. Subsequently Commissioner of Commercial Taxes (Karnataka) vide order dated October 23, 1991 directed the Intelligence Wing Officer, Mangalore, for framing the assessment for the year 1989-90. The officer to whom the case was transferred framed the assessment on February 25, 1995. Separate order of penalty of the same date was also passed. Reported as Calicut Trading Company v. Deputy Commissioner of Commercial Taxes [1999] 115 STC 46 (Kar). 3.. Order of assessment was served on the appellant on March 1, 1995. The time-limit for filing the appeal is 30 days but the appeal was filed on August 25, 1995 with a medical certificate for condonation of delay which was dismissed by the first appellate authority being barred by time. Second appeal was also dismissed by the Appellate Tribunal on October 10, 1995. The appellant filed revision petitions in this Court which were also dismissed by the division Bench on September 15, 1997. The contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Constitution. That the dismissal of the appeals and revisions filed by the appellant would not be a bar to the exercise of jurisdiction under article 226. It was also contended that the availability of alternate remedy does not debar the High Courts to issue the prerogative writ of certiorari. 6.. The foremost question which has to be considered is whether the appellant can be permitted to avail of the remedy under article 226 of the Constitution of India to assail the assessment order after having unsuccessfully availed of the remedy of filing the appeal before the first appellate authority, second appeal before the Tribunal and the revision before the High Court. Karnataka Sales Tax Act provides the statutory remedy of filing the appeal within 30 days from the date of service of assessment order. If there is sufficient cause for delay the appellate authority had the jurisdiction to condone the same. If the delay is not condoned then against such an order an appeal lies to the Appellate Tribunal which may also examine the matter whether there are sufficient grounds for condonation of delay. Even the remedy of revision can be availed before the High Court. After availing all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders of assessment could only be challenged by the mode prescribed by the Act and not by a petition under article 226 of the Constitution of India. Appellant availed of the remedy of filing the appeal which was dismissed being barred by time. Supreme Court of India in A.V. Venkateswaran v. Ramchand Sobhraj Wadhwani AIR 1961 SC 1506 held where a petitioner is disabled from availing himself of the statutory alternate remedy by his own fault by not filing the appeal within the prescribed time then he certainly cannot be permitted to urge that as a ground for the court dealing with his petition to exercise its discretion in his favour. It was observed as follows: The question that we have now to consider is has the discretion which undoubtedly vested in the court been so improperly exercised as to call for our interference with that order. We might premise this discussion by expressing our opinion on two matters merely to prevent any misunderstanding. First we entirely agree with Chagla, C.J. that the order of the Assistant Collector of Customs in assessing duty at 78 per cent or of the Collector of Customs in confirming the same, was not void for lack of jurisdiction. The inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, the appellant cannot be permitted to avail the remedy under article 226 of the Constitution of India to assail the original order of assessment which had attained finality under the Act. Contention that the order of assessing authority did not merge with the orders passed in appeals or revisions cannot be accepted. Reliance placed on certain judgments in which it was held that the orders passed in revisions under section 115, C.P.C at the interlocutory stage would not debar the aggrieved party to raise that point in appeal on the ground that there was no merger of the orders, would be of no avail to the appellant in the present case. It cannot be said that the order of assessment did not merge with the orders passed by the appellate authority or that of the High Court in revision. Once the order is passed after hearing the parties, then the original order merges with the order made in appeal and any revision and thereafter the appellant cannot be permitted to challenge or attack the original order by another set of proceedings in High Court under articles 226 and 227 of the Constitution. In such a case the courts would be well advised not to exercise their extraordinary j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zed documents. He was not required to produce the records which were seized from him. Appellant if desired could have asked for the photostat copies of the seized documents or make copies of the original documents through inspection. No such opportunity had been asked for. It could not be said that the principles of natural justice had been violated in this case. Moreover all these facts could have been gone into by the appellate/revisional authority and this Court in exercise of article 226 of the Constitution is not required to go into all these questions specially when the appellant was unsuccessful in challenging the original order of assessment on disputed questions because of his own fault. 12.. We further do not agree that the Commissioner of Commercial Taxes erred in exercise of jurisdiction in placing the matter before another assessing authority. It is not disputed before us that the Commissioner of Commercial Taxes had the jurisdiction to transfer the case from one assessing authority to another. Even if it is taken for the sake of argument that the Commissioner of Commercial Taxes exercised his jurisdiction in transferring the assessee s case from one jurisdiction t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
