9911796707
TMI Blog1998 (2) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... ent orders for the years 1990-91, 1991-1992, 1992-93, 1993-94 and 1994-95 have been filed in O.J.Cs. Nos. 1905 of 1996, 1902 of 1996, 1903 of 1996, 1904 of 1996 and 1906 of 1996 respectively. 2.. The points raised before this Court by Mr. B.K. Mohanty, learned counsel for the petitioner, are as follows: (i) That the notice issued under section 12(8) of the Act is bad in law on the ground of non-disclosure of reasons. (ii) That the said notice is defective as the assessee did not get the period of one month, as mentioned in the aforementioned section. (iii) That the notice is defective as there is non-application of mind on the part of the assessing officer inasmuch as irrelevant portions in the statutory form have not been scored ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt. It was also held that the Act provided for a complete machinery to challenge an order of assessment, and, therefore, the jurisdiction of the High Court under article 226 of the Constitution may not be exercised. In the said decision, the apex Court relied upon the decision in Raleigh Investment Co. Ltd. v. Governor-General in Council [1947] 15 ITR 332 (PC); [1947] 74 IA 50 (PC), wherein it was observed that in the provenance of tax where the Act provided for a complete machinery which enabled an assessee effectively to raise in courts the question of validity of an assessment denied an alternative jurisdiction to the High Court to interfere. It was also held that under the scheme of the Act, there is a hierarchy of authorities before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the apex Court in M.G. Abrol AIR 1966 SC 197, is not applicable to the case in hand inasmuch as the Commissioner has, in a revision, the power to reduce the tax/penalty imposed. We may also state here that, as laid down by the apex Court in Chandra Kumar v. Union of India AIR 1997 SC 1125, jurisdiction of the High Court under article 226 is the basic structure of the Constitution, but this jurisdiction is subject to self-imposed restrictions so that parties can avail of alternative remedy. 8.. Situated thus, we hold that in tax matters this Court should not exercise its jurisdiction under article 226 of the Constitution unless it is shown that the order under challenge was without jurisdiction and not within the competence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of one month s time as mentioned in the notice, was not given to the petitioner. It has also been urged that there is nonapplication of mind on the part of the assessing officer inasmuch as irrelevant portions of the statutory form (form IV) has not been scored out. 11.. We have perused the notice and we find that some irrelevant portions have not been scored out. Some relevant portions have also been added. Reasons have also been stated for reopening the case. Of course, it is not necessary that reasons for such notice need be disclosed to the notice. In this connection, we may refer to a decision of the apex Court in Sales Tax Officer v. Uttareshwari Rice Mills [1972] 30 STC 567, wherein the apex Court held in the context o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. S.P. Kushare, Sales Tax Officer [1968] 21 STC 326. 14.. It was urged that the notice is bad on the ground that the assessee was not given the benefit of 30 days time, as prescribed by rule 23 of the Orissa Sales Tax Rules. We find from record that the notice was issued on November 22, 1995 asking the petitioner to appear on December 22, 1995. In fact, the petitioner appeared through his agent on December 22, 1995 and asked for time, which was granted. He again appeared on December 26, 1995. Therefore, this contention is not correct. We may state here what learned counsel for the petitioner has urged that the person who appeared had no authority. But, this is not acceptable in view of the fact that this point was never raised before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansferring a file a hearing is necessary. We are of the opinion that this point is irrelevant for the present purpose. The only question is to be decided is whether the assessee took part in the proceeding and whether any prejudice was caused to him. We find that the assessee took part in the proceeding without raising any objection, and no prejudice seems to have been caused to him. 17.. For the aforesaid reasons, we hold that the present writ petitions are not maintainable and the petitioner has to approach the appellate forum. Considering the facts and circumstances of the case, we allow 15 days time to the petitioner to file appeals, if so advised. 18.. Coming to the question of stay, we direct that on payment of 30 per cent of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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