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TMI Blog2006 (7) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the writ petitions shall not stand in the way of the writ petitioners/appellants approaching the appellate forum, if so advised. The present appeals (1)Reported in [2007] 7 VST 424 (Gauhati) (Allied Sales Corporation v. State of Assam).. have been filed by the writ petitioners challenging the said common judgment and order passed by the learned single judge(1) refusing to exercise the writ jurisdiction in view of existence of statutory alternative remedy by way of appeal under the provisions of the said Act. The facts in brief necessary for the purpose of the present appeals are that the appellants/writ petitioners, who are registered dealers registered under the provision of the 1993 Act as well as the 1956 Act and dealing with the purchase of tea from Guwahati Tea Auction Centre and selling the same in course of inter-State trade and commerce to the registered dealers having their business outside the State of Assam, submitted their returns for various assessment years under the 1993 Act. The Superintendent of Taxes after going through the books of account and documents submitted by the assessees completed the assessment under section 17(4) of the 1993 Act read with sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Misra, the learned Senior Counsel appearing on behalf of the appellants, has submitted that there is no bar in exercising the jurisdiction by the writ court under article 226 of the Constitution of India even if alternative remedy is available to the writ petitioners and it is only the self-imposed restriction. The learned Senior Counsel has submitted that writ court can exercise its jurisdiction even if alternative remedy by way of statutory appeal is available to the writ petitioners if the order impugned in the writ petition has been passed by an authority without having any jurisdiction or for enforcement of a fundamental right or if there has been violation of the principle of natural justice or where vires of the Act is in question. According to the learned Senior Counsel the learned single judge ought not to have dismissed the writ petitions on the ground of availability of the alternative remedy by way of statutory appeal under the provision of the 1993 Act as the writ petitioners have challenged the orders of fresh assessment passed by the assessing authority on the ground of violation of the principle of natural justice, inasmuch as the petitioners/appellants were no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad in law being in violation of the principle of natural justice, the learned Senior Counsel has placed reliance on decisions of the apex court in C. Vasantlal Co. v. Commissioner of Income-tax, Bombay City reported in [1962] 45 ITR 206 as well as State of Assam v. Mahendra Kumar Das reported in [1970] 1 SCC 709. The learned Additional Advocate-General on the other hand supporting the judgment passed by the learned single judge dismissing the writ petitions on the ground of having alternative remedy by way of statutory appeal, has submitted that the writ court has the discretion not to entertain the writ petition in the event of availability of the alternative remedy by way of statutory appeal and such discretion has been exercised by the learned single judge in not entertaining the writ petition. According to the learned Additional Advocate-General admittedly there is a provision of statutory appeal under the 1993 Act and it is always open to the appellants/ writ petitioners to raise the question of violation of principle of natural justice while passing the order of fresh assessment before the appellate forum. It has further been contended that no doubt the writ court can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is no doubt that there cannot be any bar on the High Court to exercise the jurisdiction under article 226 of the Constitution of India. The High Court has definitely the jurisdiction to entertain a writ petition in appropriate cases even when the alternative remedy is available to the writ petitioners, though High Court normally does not exercise such jurisdiction when an alternative remedy is available. Such restriction in entertaining the writ petition is nothing but a self-imposed restriction/fetter or selfimposed limitation and it is essentially a rule of policy, convenience and discretion and never a rule of law. It is by now settled that the High Court can exercise the writ jurisdiction, even if there is an alternative remedy available to the person approaching the High Court, by way of appeal, in the event the authority who passed the order under challenge lacks inherent jurisdiction to pass such order or for the enforcement of the fundamental right or where the vires of the Act is in challenge or where there has been violation of the principle of natural justice. The apex Court in State of H. P. v. Gujarat Ambuja Cement Ltd. [2005] 142 STC 1; [2005] 6 SCC 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is generally to be insisted that an assessee must go through the statutory proceeding before approaching the High Court under article 226 of the Constitution of India. Though the writ court can exercise its jurisdiction under article 226 of the Constitution of India, even when an adequate efficacious alternative remedy is available, on the ground of violation of the principle of natural justice, the writ court may entertain such writ petition on that ground only when the violation of the principle of natural justice is writ large on the face of the order impugned in the writ petition. In a case where it requires the examination of the factual aspect even to find out whether the natural justice has been violated, it should be left to be decided by such statutory or other authority before whom the appeal is provided under the statute, as such authority can go into the factual aspect of the matter, more so when the writ court in dealing with an application under article 226 of the Constitution of India cannot decide a disputed question of fact. In the instant case according to the learned Senior Counsel for the appellants/writ petitioners there is violation of the principle o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal and exercise of such discretion cannot be interfered with in an intra court appeal, unless of course it is shown that such order is contrary to the provision of law or discretion has not been exercised by the learned single judge judiciously or there exists cogent reason, which the appellants have failed to do. In the instant case as discussed above, the learned single judge has rightly refused to entertain the writ petitions on the ground of availability of an efficacious alternative remedy, which in our considered opinion does not suffer from any illegality requiring interference in the hands of this court. The learned Senior Counsel for the appellants/writ petitioners has also placed reliance on the decision of the apex court in C. Vasantlal and Co. [1962] 45 ITR 206 and State of Assam v. Mahendra Kumar Das [1970] 1 SCC 709 in support of his contention that the appellants are entitled to get the materials on the basis of which the Superintendent of Taxes has issued the show cause notices. Since we have decided not to enter into that question in the present proceeding and left it open to be decided by the statutory authority in the appeal that may be filed by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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