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TMI Blog2000 (8) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 1 crore to protect the interest of revenue. SINCE the petitioner has not complied with the demand, the first respondent had caused to issue further notice dated 19.5.1997 to show cause as to why the registration under the local Act and the Central Act be not cancelled. The petitioner by reply dated 29.5.1997 informed the first respondent that they were not able to produce the books of account because the same were seized by the income-tax authorities and requested the respondent not to resort to any coercive methods. But the first respondent proceeded to pass orders on 26.8.1997 cancelling the sales tax registration of the petitioner. Against the order of the first respondent, the petitioner had preferred a revision before the Commissioner of Commercial Taxes, Pondicherry. The said revision petition was allowed in favour of the petitioner with certain conditions. The petitioner had duly complied with the main condition. SINCE the petitioner failed to produce the records as demanded, the first respondent proceeded to pass a best judgment assessment by order dated 8.10.1997. As against the order of the respondent, the petitioner had preferred a statutory appeal before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the three writ petitions. In the light of the above pleadings, I have heard the learned counsel for the petitioners as well as respondents. Mr.K.Doraisami, learned senior counsel for the petitioners, by relying on Sec.23(8) and (9) of the local Act, would contend that inasmuch as the personal hearing is a mandatory one before cancelling the registration, in the absence of providing opportunity of being heard, the impugned order passed in all the 3 writ petitions is liable to be quashed. He further states that inasmuch as the first respondent failed to follow the mandatory provision, namely, Sec.23(9) of the local Act before cancelling the registration certificate, the petitioners are justified in filing writ petition before this Court irrespective of provision for revision before the revisional authority. On the other hand, learned Government Pleader for Pondicherry would contend that inasmuch as the petitioners have filed revision before the revisional authority and the same are pending as on date, there cannot be any two parallel proceedings against the order passed by the first respondent and in this view of the matter, the writ petitions are liable to be rejected. I h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s empowered to cancel, modify or amend any registration certificate issued by him for good and sufficient reasons. It is not disputed that all the 3 petitioners were granted registration certificates by the first respondent. It is incumbent on the part of the first respondent, before passing any order under Sub-sec.(8) of Sec.23 to afford an opportunity of being heard to the dealer concerned. Sub-Sec.(9) provides not only show-cause notice with regard to proposed action, namely, cancellation of registration certificate but the aggrieved person, namely, the dealer concerned must be given an opportunity of being heard. Admittedly, the first respondent has not afforded personal hearing to the petitioners before passing the impugned order. Learned Government Pleader has brought to my notice that revision is provided before the Commissioner of Commercial Taxes at Pondicherry and as a matter of fact, the petitioners have already availed that remedy, hence the present writ petitions are liable to be dismissed. Availability of alternative remedy namely, revision before the Commissioner of Commercial Taxes is not disputed. Sec.36 of the local Act enables the aggrieved person to file a revis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of U.P. Rao Shiv Bahadur Singh v. State of U.P. Rao Shiv Bahadur Singh v. State of U.P. , A.I.R. 1954 S.C. 322: 1954 S.C.R. 1098 and again in Deep Chand v. State of Rajasthan , 1961 S.C. 1527: (1962)1 S.C.R. 662 These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh State of U.P. v. Singhara Singh State of U.P. v. Singhara Singh , A.I.R. 1964 S.C. 358: (1964)1 S.C.W.R. 57 and the rule laid down in , 71 MLJ. 476: (1936)63 I.A. 372: A.I.R. 1936 P.C. 253, was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law.? IN State of Gujarat v. Shantilal , A.I.R. 1969 S.C. 634 the Constitution Bench of the Hon?ble Supreme Court observed that it is a settled rule of interpretation of statutes that when power is given under a statute to do a certain thing in a certain way the thing must be done in that way or not at all: Taylor v. Taylor , (1875)1 Ch.D. 426. It is clear that inasmuch as the power of cancellation being an ?extreme power? which visits the party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n M/s.P.K.S.Threads v. The Commercial Tax Officer M/s.P.K.S.Threads v. The Commercial Tax Officer M/s.P.K.S.Threads v. The Commercial Tax Officer , (1993)4 M.T.C.R. 440 (Mad.), Janarthanam, J., had an occasion to consider similar provisions of Tamil Nadu General Tax Act and the Rules made thereunder. The contention before the learned Judge was that cancellation of the certificate of registration is an extreme action and it is obligatory on the part of the respondent Commercial Tax Officer, Mannadi, (East) Assessment Circle to give a personal hearing to the petitioner before ever, he passed the impugned order in accordance with the sanguine and salient provisions adumbrated under Sec.21(6) of the TNGST Act. However, the learned Government Advocate contended that there is no need to give a personal hearing in a case like this where the petitioner failed to take the necessary and requisite steps to renew the certificate of Registration and in such a situation, Certificate of Registration shall be deemed to have been cancelled under Sub-sec.(3) of Sec.21 of the TNGST Act. After referring the provision, namely, Sub-sec.(6) of Sec.21 of T.N.G.S.T. Act, the learned Judge has arrived at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the absence of such compliance and the power of cancellation being an extreme power which visits the party with serious consequences, the impugned orders cannot be sustained . With regard to the contention that since the writ petitioners have filed revision under Sec.36 of the Local Act the present writ petitions are not maintainable, learned senior counsel for the petitioners has very much relied on a decision of the apex court in Collector of Customs, Cochin v. A.S.Bava Collector of Customs, Cochin v. A.S.Bava Collector of Customs, Cochin v. A.S.Bava , A.I.R. 1968 S.C. 13. In the case before the Supreme Court, it was contended that the petitioner having availed of the remedy under Sec.129 of the Customs Act, he was debarred from challenging the impugned notification, dated May 4, 1963. Rejecting the said contention, Their Lordships have held that ?it is settled that the presence of a remedy by way of revision does not bar the jurisdiction of the High Court to entertain a petition under Art.226.? In M/s.Vorion Chemicals and Distilleries Ltd. v. Inspecting Assistant Commissioner of Income Tax etc. M/s.Vorion Chemicals and Distilleries Ltd. v. Inspecting Assistant Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority and contemporaneously set aside the order of assessment which is impugned herein, as a full and fair trial has not been given to the petitioner when the order of assessment has been made.? After saying so, the learned Judge allowed the writ petition and permitted the petition to withdraw T.C.No.397 of 1993 filed by them before this Court. In Whirlpool Corporation v. Registrar of Trade Marks (1998)8 S.C.C. 1, their Lordships have considered the power of this Court in such a circumstance, namely, instance of effective and efficacious remedy. The following observations of Their Lordships is relevant: ( 5. ) THE power to issue prerogative writs under Art.226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for any other purpose. Under Art.226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h must govern the proper exercise of the discretion of the court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the court.? 19. Another Constitution Bench decision in Calcutta Discount Co. Ltd. v. I.T.O. Calcutta Discount Co. Ltd. v. I.T.O. Calcutta Discount Co. Ltd. v. I.T.O., Companies District, A.I.R. 1961 S.C. 372, laid down: ?Though the writ of prohibition or certiorari will not issue against an executive authority, the High Court have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against the Income Tax Officer acting without jurisdiction under Sec.34, Income Tax Act.? 20. Much water has since flown under the bridge, but there has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the judgment of the tribunal. While the said appeal was pending the writ petitioner invoked the writ jurisdiction of the Bombay High Court praying more or less the same remedy as was prayed in the appeal. 13. We are of the view that the point taken by the appellant is of substance. This is a case, where there is not only the existence of an alternative remedy but the writ petitioner actually had availed of that remedy. The writ petitioner's appeal before the statutory authority was pending. In that view of the matter this writ petition should not have been entertained. ( 6. ) IN I.T.Commissioner, Lucknow v. U.P.Forest Corporation I.T.Commissioner, Lucknow v. U.P.Forest Corporation I.T.Commissioner, Lucknow v. U.P.Forest Corporation, A.I.R. 1998 S.C. 1125, while considering writ petitions challenging the correctness of the decision of the tribunal in respect of assessment years 1977-78 and 1980-81 and that of the assessment year 1984-85, their Lordships have observed thus: ?14. These proceedings arise out of the writ petitions which have been filed challenging the correctness of the decision of the tribunal in respect of the assessment years 1977-78, 1980-81 and that of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , A.I.R. 1961 S.C. 609, the Supreme Court has held that a person who is aggrieved by an order of the Appellate Assistant Commissioner imposing a penalty, cannot be permitted to abandon resort to that machinery and to invoke the jurisdiction of the High Court under Art.226 when he had adequate remedy open to him by way of appeal to the tribunal. In Shyam Kishore v. Municipal Corporation of Delhi, A.I.R. 1992 S.C. 2279, their Lordships have held that the resort to Arts.226 and 227 should be discouraged when there is alternative remedy. Similar view in expressed in in Chanan Singh and Sons v. C.C.E. Chanan Singh and Sons v. C.C.E. Chanan Singh and Sons v. C.C.E., (1999)9 S.C.C. 17 ; and Todi Industries Ltd. v. Union of India Todi Industries Ltd. v. Union of India Todi Industries Ltd. v. Union of India , (1999)9 S.C.C. 230. ( 7. ) LEARNED Government Pleader has relied on the following observation of K.Sampath, J., in H.D.Exporters v. Union of India and others H.D.Exporters v. Union of India and others H.D.Exporters v. Union of India and others, (1999)2 L.W. 343 : (para.15) ?Having chosen to pursue his remedy by way of appeal, the writ petitioner ought to have either withdrawn the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. No doubt, the petitioner in W.P.No.19156 of 1998 has not filed similar affidavit mentioning the particulars as referred to in other writ petitions. However, in view of the legal position referred to above, it will not affect the case of the petitioner. I have already referred to the salient features and opportunity to be afforded to the dealer before cancelling his registration certificate. I have also referred to that in terms of Sub-sec.(9) of Sec.23 of the Local Act, the petitioners are entitled to personal hearing before an order under Sub-sec.(8). This aspect has not been disputed. As observed by Their Lordships of the Supreme Court in Babu Varghese v. Bar Council of Kerala, (1999)2 C.T.C. 722, if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or not at all. The said rule has been recognised as a salutary principle of Administrative Law. Further, the power of cancellation of registration certificate being an extreme which visits the party with serious consequences, the same should be exercised in the manner in which the Legislature wants the officer to act. Though the petitioners were given an opportunity to file th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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