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TMI Blog2009 (3) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the assessment order without approaching the appellate forum provided under the statute. No cogent reason could be given by Mr. Sahoo, learned counsel for the petitioner, as to under what circumstances such special status has been conferred on the petitioner-assessee by this court. It seems to be an inadvertent mistake committed by this court. Petition dismissed. The petitioner is given liberty to approach the appellate forum within a period of three weeks from today - 15211 of 2001 - - - Dated:- 18-3-2009 - CHAUHAN B.S. DR. C.J. AND MAHANTY I. , JJ. Dr. B.S. CHAUHAN C.J. This writ petition has been filed challenging the assessment order dated September 30, 2001 (annexure 10) on the ground that the petitioner was entitled for tax exemption under the Industrial Policy Resolution, 1986. The writ petition was filed in 2001 and came up for hearing today. The learned counsel for the Revenue has raised objection that the writ petition has been filed without exhausting the statutory remedy of appeal as provided under the Orissa Sales Tax Act, 1947. Therefore, the petitioner should be relegated to the appellate forum. On the contrary, Mr. Jagabandhu Sahoo, learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not occasion injustice in a broad and general sense. The Constitution Bench of the Supreme Court in State of Madhya Pradesh v. Bhailal Bhai [1964] 15 STC 450; AIR 1964 SC 1006, held that the remedy provided in a writ jurisdiction is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defence legitimately open in such actions. The power to give relief under article 226 of the Constitution is a discretionary power. Similar view has been reiterated in N.T. Veluswami Thevar v. G. Raja Nainar AIR 1959 SC 422 and Municipal Council, Khurai v. Kamal Kumar AIR 1965 SC 1321. In Siliguri Municipality v. Amalendu Das AIR 1984 SC 653 and S.T. Muthusami v. K. Natarajan AIR 1988 SC 616, the apex court held that the High Court must exercise its power under article 226 with circumspection and while considering the matter of recovery of tax, etc., it should not interfere save under very exceptional circumstances. In Kerala State Electricity Board v. Kurien E. Kalathil [2000] 6 SCC 293 and A. Venkatasubbiah Naidu v. S. Chellappan [2000] 7 SCC 695, the Supreme Court deprecated the practice of exercising the writ jurisdiction when eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt held that where a hierarchy of appeals is provided by the statute, a party must exhaust the statutory remedies before resorting to writ jurisdiction. The Constitution Bench of the Supreme Court in K.S. Venkataraman and Co. (P.) Ltd. v. State of Madras [1966] 17 STC 418 (SC); AIR 1966 SC 1089, considered the Privy Council judgment in Raleigh Investment Co. Ltd. v. Governor-General in Council AIR 1947 PC 78 and held that the writ court can entertain the petition provided the order is alleged to be without jurisdiction or has been passed in flagrant violation of the principles of natural justice, or the provisions of the Act/Rules is under challenge. In Titaghur Paper Mills Co. Ltd. v. State of Orissa [1983] 53 STC 315; AIR 1983 SC 603, the Supreme Court refused to extend the ratio of its earlier judgment in State of U.P. v. Mohammad Nooh AIR 1958 SC 86, wherein the court had held that prerogative writ can be issued to correct the error of the court or Tribunal below even if an appeal is provided under the statute under certain circumstances, i.e., the order is without jurisdiction, or principles of natural justice have not been followed, and held that in case of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Binani v. Commissioner of Income-tax, West Bengal [1970] 76 ITR 692 (SC); AIR 1970 SC 645, the court observed as under: In our judgment, no adequate ground was made out for entertaining the petition. A writ of certiorari is discretionary; it is not issued merely because it is lawful to do so. Where the party feeling aggrieved by an order of an authority under the Income-tax Act has an adequate alternative remedy which he may resort to against the improper action of the authority and he does not avail himself of that remedy the High Court will require a strong case to be made out for entertaining a petition for a writ. Where the aggrieved party has an alternative remedy the High Court would be slow to entertain a petition challenging an order of a taxing authority which is, ex facie, with jurisdiction. . . (Emphasis Here italicised. added) In U.P. State Spinning Co. Ltd. v. R.S. Pandey [2005] 8 SCC 264, the Supreme Court re-considered almost all of its earlier judgments on issue and came to the conclusion as under: In a catena of decisions it has been held that writ petition under article 226 of the Constitution should not be entertained when the statutory remedy i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut approaching the appellate forum provided under the statute. No cogent reason could be given by Mr. Sahoo, learned counsel for the petitioner, as to under what circumstances such special status has been conferred on the petitioner-assessee by this court. It seems to be an inadvertent mistake committed by this court. The courts are not to perpetuate an illegality, rather it is the duty of the court to rectify the mistakes. While dealing with a similar issue the apex court in Hotel Balaji v. State of Andhra Pradesh [1993] 88 STC 98; AIR 1993 SC 1048 observed as under (at page 112 of STC): . . . To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Branson in Pierce v. Delameter (A.M.Y. at page 18): 'a judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors'. (Emphasis Here italicised added) Mr. J. Sahoo, learned counsel appearing for the petitioner, h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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