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TMI Blog2012 (1) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... orders, under the circumstances, cannot be said to be unauthorised and without jurisdiction. Writ petitions are dismissed without being admitted upholding the plea of non-maintainability of the writ petitions as has been raised by the respondents. - W.P. (C) Nos. 5388, W.P. (C) Nos. 5389, W.P. (C) Nos. 5620 of 2011 - - - Dated:- 6-1-2012 - SHARMA B.K. J. Dr. Ashok Saraf, Senior Counsel and N. Hawelia for the petitioners K.N. Choudhury, Additional Advocate-General, Ms. R. Kakoti and R. Dubey for the respondents JUDGMENT All the writ petitions by and between the same parties, with the same relief prayed for, have been heard together. As agreed to by the learned counsel for the parties, the writ petition being W. P. (C) No. 5389 of 2011 is taken as the base case and the learned counsel for the parties have exclusively referred to the pleadings therein and the documents annexed. Dr. A. K. Saraf, learned senior counsel assisted by N. Hawelia, learned counsel for the petitioners referring to the impugned show-cause notice dated June 20, 2011 ; order of reassessment dated July 18, 2011 and the notice of demand issued pursuant thereto, has submitted that there b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment, the impugned orders cannot be called in question by means of the writ petitions. Since the matter has been primarily argued on the question of maintainability of the writ petition in view of alternative remedy available under the Act, the same has been considered for admission hearing taking note of the said arguments in support of which learned counsel for the parties have also placed reliance on certain decisions. Dr. Saraf, learned senior counsel for the petitioner in support of his argument about the maintainability of the writ petitions has placed reliance on the following decisions:- (i) Madhya Pradesh Industries Ltd. v. Income-tax Officer [1965] 57 ITR 637(SC). (ii) State of Tripura v. Manoranjan Chakraborty [2001] 122 STC 594 (SC); [2001] 10 SCC 740. (iii) Ram and Shyam Company v. State of Haryana [1985] 3 SCC 267. On the other hand, Mr. K. N. Choudhury, learned Additional Advocate-General has placed reliance on the decision reported in [1971] 82 ITR 147 (SC) ; [1972] 3 SCC 234 (Sheo Nath Singh v. Appellate Assistant Commissioner of Income Tax, Calcutta). In Madhya Pradesh Industries Ltd. [1965] 57 ITR 637 (SC), the apex cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, it was observed that while rejecting the writ petition the High Court did not pose to itself the question and accordingly the order of rejection of the writ petition was set aside. In Union of India v. Hindalco Industries reported in [2004] 135 STC 281 (SC) ; [2003] 5 SCC 194, the apex court observed thus (pages 286 and 287 in 135 STC):- 12. There can be no doubt that in matters of taxation, it is inappropriate for the High Court to interfere in exercise of jurisdiction under article 226 of the Constitution either at the stage of show-cause notice or at the stage of assessment where alternative remedy by way of filing a reply or appeal, as the case may be, is available but these are the limitations imposed by the courts themselves in exercise of their jurisdiction and they are not matters of jurisdictional factors. Had the High Court declined to interfere at the stage of show-cause notice, perhaps this court would not have been inclined to entertain the special leave petition; when the High Court did exercise its jurisdiction, entertained the writ petition and decided the issue on the merits, we do not think it appropriate to upset the impugned order of the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the evolutionary era of the constitutional law as they still hold the field. In Sheo Nath Singh [1971] 82 ITR 147 (SC) ; [1972] 3 SCC 234 the apex court dealing with the expression reason to believe observed that belief must be that of an honest and reasonable person based upon reasonable ground. This decision has been pressed into service by Mr. K. N. Choudhury, learned Additional Advocate-General to emphasise that the impugned order reasonably depicts formation of a belief of an honest and reasonable person. I have given my anxious consideration to the submission made by the learned counsel for the parties and have also perused the materials on record. Needless to say that the proceedings under article 226 of the Constitution of India are not a substitute for a proceeding initiated under the Act. The only inquiry which this court can make under article 226 of the Constitution of India at this stage, is whether there is prima facie material to sustain the impugned orders. The petitioner was issued with show-cause notice on the premises that purchase and consumption of tobacco in the manufacturing of tobacco products are unreasonable and disproportionate to the exten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct provides for alternative and efficacious remedy by way of an appeal to the appellate authority which the petitioner is entitled to prefer against the impugned assessment order. Although the learned counsel for the petitioner has argued that the impugned assessment order is ex facie illegal, arbitrary and without jurisdiction, but as noted above, there is prima facie materials to sustain the same. From the scrutiny of the impugned orders as reflected above, it cannot be said to be a proceeding against the petitioner with misconceived notion. If the authority which has issued the impugned orders has derived a decision on the basis of the materials on record, it is none of the business of the writ court to sit on appeal on such decision exercising its power of judicial review under article 226 of the Constitution of India. While it is true that no hurdle can be put against exercise of the constitutional power of the High Court, it is a well recognised principle which has gain judicial recognition that it should direct the parties to avail itself of such remedies one or other before it resorts constitutional remedy. The allegations contained in the impugned orders require adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged. For all the aforesaid reasons, I am not inclined to admit the writ petitions. The petitioners shall pursue their remedy under the Act urging all the grounds as has been urged in the writ petitions. We need not be presumptive that the authority dealing with the matter will be oblivious of the grounds which might be urged by the petitioner against the impugned assessment orders taking note of the totality of the facts and circumstances. It will be a sound discretion not to stall the inbuilt proceeding under the Act. In view of the above, the writ petitions are dismissed without being admitted upholding the plea of non-maintainability of the writ petitions as has been raised by the respondents. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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