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TMI Blog2005 (5) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... ales tax return under the Tripura Sales Tax Act, 1976 (hereinafter referred to "the Act", for short). Notice for the purpose of assessment for the year 1991-92 was issued to the petitioner on September 26, 1992 fixing the date on November 19, 1992 followed by subsequent several dates for assessment but when on the dates fixed, the petitioner did not appear, therefore, a best judgment assessment was passed by the assessing authority and demand notice dated August 2, 1995 issued along with the best judgment assessment has been challenged in this writ petition contending, inter alia, that the facts, quantum, material evidences indicated in the petitioner's return were not properly appreciated and the best judgment assessment order was passed without intimation to the petitioner. Section 6 of "the Act" deals with registration, section 7 deals with certificate of registration, section 8 deals with submission of returns, section 9 deals with the assessment by the assessing authority, section 11 1. Oral deals with assessment in cases of evasion and escape, section 12 deals with rectification of orders, section 13 deals with penalty for concealment of turnover and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any writ petition against the assessment order as specific provision of appeal against the assessment order under "the Act" is available. In Joharmal Murlidhar and Co. v. Agricultural Income-tax Officer, Assam [1971] 79 ITR 6 (SC); [1970] 3 SCC 331, the remedy against the best judgment assessment order in question without preferring appeal as provided in "the Act" challenged by dealer in the writ petition before the High Court was denied by the High Court on the ground of alternative remedy and the Supreme Court has observed that the High Court was justified in refusing to grant any relief in writ jurisdiction as the remedy of appeal was provided in particular Act. It is necessary to refer paragraph 13 at page 666 (at page 458 in STC) and paragraph 15 at page 667 (at page 459 in STC) of Fatikcherra Tea Estate v. State of Tripura [1997] 104 STC 453 (Gauhati); [1996] 3 GLT 661: "13. On the other hand in support of his arguments Shri U. B. Saha, learned counsel for the respondents also relied upon a decision of the apex court rendered in a case between Commissioner of Sales Tax, Madhya Pradesh v. H. M. Esufali H. M. Abdulali reported in [1973] 32 STC 77 (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second proviso to sub-section (1) of section 20 as well as the proviso to sub-section (2) of section 21 of the Tripura Sales Tax Act, 1976 is still valid and the same has statutory force of law in view of the stay order by the apex court as discussed above. I am in full agreement with this contention of Shri U. B. Saha. Another contention has been made by Shri U. B. Saha, learned counsel for the respondents, that relying upon a Madras High Court decision in a case between State of Tamil Nadu v. E. P. Nawab Marakkadai reported in [1996] 100 STC 1 [FB], in which the Madras High Court upheld the statutory provisions of law under section 31 of the Tamil Nadu General Sales Tax Act, 1959 by which particularly the second proviso to section 31 of the Act places an embargo on the appeal being entertained unless it is accompanied by satisfactory proof of the payment of the tax admitted by the appellant; if there is no payment of the admitted tax within the period allowed for filing the appeal or within the extended period as specified in the Act for condonation of delay in preferring an appeal, no appeal can be said to have been filed. In other words, the pre-requisite deposits are required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court placed reliance on a large number of judgments, particularly Wolverhampton New Water Works Co. v. Hawkesford [1859] 6 CBNS 336, Neville v. London Express Newspaper Ltd. [1919] AC 368, Attorney General of Trinidad and Tobago v. Gordon Grant & Co. [1935] AC 532 and Secretary of State v. Mask & Co. AIR 1940 PC 105, wherein it had consistently been emphasised that the remedy provided by the statute must be followed and writ should not generally be entertained unless the statutory remedies are exhausted. In Whirlpool Corporation v. Registrar of Trade Marks AIR 1999 SC 22 and Tin Plate Co. of India Ltd. v. State of Bihar [1999] 112 STC 543 (SC); AIR 1999 SC 74 the Supreme Court came to the conclusion that writ should not generally be entertained if statute provides for remedy of appeal and even if it has been admitted, case should be relegated to the appellate forum. In Sheela Devi v. Jaspal Singh [1999] 1 SCC 209, the Supreme Court has held that if the statute itself provides for a remedy of revision, writ jurisdiction cannot be invoked. In Punjab National Bank v. O. C. Krishnan AIR 2001 SCW 2993, the Supreme Court while considering the issue of alternative remedy observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. The Supreme Court held that existence of an another remedy does not affect the jurisdiction of the court to issue a writ; but the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under article 226 of the Constitution unless there are good grounds therefor. Yet another Constitution Bench of the Supreme Court in State of U. P. v. Mohammed Nooh AIR 1958 SC 86, considered the scope of exercise of writ jurisdiction when remedy of appeal was there and has held that the court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of fundamental principles of justice. Therefore, in a proper case, powers of writ can be exercised, but should not be exercised generally where other adequate legal remedy is available though it may not be, per se, a bar to issue a writ of prerogative. The Supreme Court held that the remedy, being discretionary, cannot be asked ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Kerala State Electricity Board v. Kurien E. Kalathil [2000] 6 SCC 293, while dealing with similar issue, the Supreme Court held that the writ petition should not be entertained unless the party exhausted the alternative/statutory efficacious remedy. In A. Venkatasubbiah Naidu v. S. Chellappan [2000] 7 SCC 695, the Supreme Court deprecated the practice of exercising the writ jurisdiction when efficacious alternative remedy is available. The court observed as under: "Though no hurdle can be put against the exercise of the constitutional powers of the High Court, it is a well recognised principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies, one or other before he resorts to a Constitutional remedy." Similar View has been reiterated in Rajasthan State Road Transport Corporation v. Krishna Kant [1995] 5 SCC 75, L. L. Sudhakar Reddy v. State of Andhra Pradesh [2001] 6 SCC 634, Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra [2001] 8 SCC 509, G. K. N. Driveshafts (India) Ltd. v. Income-tax Officer [2003] 259 ITR 19 (SC); [2003] 1 SCC 72 and Pratap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out jurisdiction or the vires of an Act is challenged. While deciding the said case, the Supreme Court placed reliance upon its earlier judgment in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai AIR 1999 SC 22. Thus, the law can be summarised that rule of exclusion of the writ jurisdiction is not a law but discretion to be exercised by the court considering the facts and circumstances of the case, and if the case requires any kind of evidence, etc., the writ court may not exercise its extraordinary jurisdiction at all. In the facts and circumstances, I find that against the best judgment or against the order passed by the assessing authority, the dealer or a person aggrieved has to avail the remedy available in "the Act". This court cannot entertain the present writ petition to exercise its power under article 226 of the Constitution as an appellate authority to appreciate facts, quantum and resolve disputed question of facts and to make reappraisal of entries of account books and return and test the validity of the assessment order. In these circumstances, this court is not inclined to exercise its extraordinary jurisdiction under article 226 of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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