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TMI Blog2017 (11) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... Common order of the writ Court made in W.P.Nos.21169 to 21171 of 2017 dated 09.08.2017, directing the appellant to avail the alternate remedy provided under the statute, cannot be said to be manifestly illegal warranting interference - petition dismissed being not maintainable. - W.A.Nos.1360 to 1362 of 2017 and CMP No.18806 to 18808 of 2017 - - - Dated:- 3-11-2017 - S. Manikumar And R. Suresh Kumar, JJ. For the Appellant : Mrs. R. Hemalatha JUDGMENT ( Order of the Court was delivered by S. Manikumar, J. ) Material on record discloses that the Assistant Commissioner (CT), Pondy Bazaar Assessment Circle, Chennai, respondent herein has passed three deemed assessment orders dated 29.12.2016, 05.01.2017 and 13.01.2017 for the years 2014-15, 2015-16 and 2013-14 respectively. According to the appellant in the monthly returns submitted by the assessee, an inadvertent error had crept in regarding reporting of commodity under the 5% category pertaining to the sales of used cars at 5% and it was inadvertently coupled alongwith other goods. Claiming the same as clerical error in the submission of the returns, petitions dated 31.03.2017 have been filed by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention raised by the petitioner to state that there is error apparent on the face of the record, is not purely a legal issue but a mixed question of fact and law. The respondent has noted that the income-tax certification was passed apart from the Audit Report and Form-WW duly signed by a Chartered Accountant and the contention raised by the petitioner that certification holds good only for the purpose of income-tax assessment is not acceptable. Prima facie, this Court is of the view that such a finding recorded by the respondent is correct. Nevertheless, the matter involves appreciation and re-appreciation of the factual position, especially when the deemed assessments have taken place at the instance of the petitioner who filed the returns duly supported by Form-WW Certificates by a Chartered Accountant. Therefore, this Court cannot embark upon a fact-finding exercise to examine the correctness of the stand taken by the respondent to ascertain as to whether there is an error apparent on the face of the record. Admittedly, the revisional remedy before the Joint Commissioner is not only effective but also an efficacious remedy. Since the matter involves levy of tax, and there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Verma, AIR 1957 SC 882, the Hon'ble Supreme Court held that it is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. 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 to do, otherwise. (ii) In C.A.Ibrahim v. ITO, AIR 1961 SC 609, H.B.Gandhi v. M/s. Gopinath sons, 1992 (Suppl) 2 SCC 312 and in Karnataka Chemical Industries v. Union of India, 1999 (113) E.L.T. 17(SC) = 2000 (10) SCC 13, the Hon'ble Supreme Court held that where there is a hierarchy of appeals provided by the statute, the party must exhaust the statutory remedies before resorting to writ jurisdiction. (iii) The general principles of law to be followed while entertaining a writ petition, when an alternative remedy is available, as per the decision of the Hon'ble Apex Court in U.P.State Spinning Co. Ltd. Vs. R.S.Pandey and Another (2005) 8 SCC 264, at para No.11 are as follows: Except for a period when Article 226 was amended b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. 45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision etc., and the particular legislation contains a detailed mechanism for redressal of his grievance. (v) In Nivedita Sharma Vs. Cellular Operators Association of India and Others {(2011) 14 Supreme Court Cases 337}, the Honourable Apex Court held that, An alternative remedy is not a bar to the entertaining of writ petition filed for the enforcement of any of the fundamental rights or wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In Ram and Shyam Co. Vs. State of Haryana (1985) 3 SCC 267, this Court has noticed that if an appeal is from Caesar to Caesar's wife , the existence of alternative remedy would be a mirage and an exercise in futility. 17. In the instant case, neither has the writ petitioner assessee described the available alternate remedy under the Act, as ineffectual and non-efficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of the instant case. In light of the same, we are of the considered opinion that the writ Court ought not to have entertained the writ petition filed by the assessee, wherein he has only questioned the correctness or otherwise of the notices issued under Section 148 of the Act, the reassessment orders passed and the consequential demand notices issued thereon. 18. In view of the above, we allow this appeal and set aside the judgment and order passed by the High Court in Chhabil Dass Agarwal Vs. Union of India {W.P.(c) No.44 of 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cellular Operators Assn. of India (2011) 14 SCC 337.) (viii) In Veerappa Pillai Vs. Raman Raman Ltd {1952 SCR 583}, CCE Vs. Dunlop India Ltd {(1985) 1 SCC 260}, Ramendra Kishore Biswas Vs. State of Tripura {(1999) 1 SCC 472, Shivgonda Anna Patil Vs. State of Maharashtra {(1999) 3 SCC 5}, C.A.Abraham Vs. ITO {(1961) 2 SCR 765}, Titaghur Paper Mills Co Ltd., Vs. State of Orissa {(1983) 2 SCC 433}, H.B.Gandhi Vs. Gopi Nath Sons {1992 Supp (2) SCC 312}, Whirlpool Corpn Vs. Registrar of Trade Marks {(1998) 8 SCC 1}, Tin Plate Co. of India Ltd., Vs. State of Bihar {(1998) 8 SCC 272}, Sheela Devi Vs. Jaspal Singh {(1999) 1 SCC 209} and Punjab National Bank Vs. O.C.Krishnan {(2001) 6 SCC 569}, this Court held that where hierarchy of appeals is provided by the statute, the party must exhaust the statutory remedies before resorting to writ jurisdiction. 7. Though, the appellant has contended that it was only an error apparent on the face of the record, upon consideration of the material on record, writ Court, vide common order made in W.P.Nos.21169 to 21171 of 2017, has observed that the income tax certification, holds good only for the purpose of income tax assessment. Writ Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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