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TMI Blog2021 (2) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... nducive both for the appellant as well as the state exchequer and the appellant has also claimed for refund, which according to them, they are rightfully entitled. This Court deems it appropriate to modify the ultimate conclusion arrived at by the learned Single Bench by directing an opportunity to be granted to the appellant, which shall be subject to certain conditions. The writ appeals are allowed and the ultimate conclusion arrived at by the learned Single Bench for dismissing the writ petitions is set aside and the appellant is directed to remit 15% of the disputed tax for each of the assessment years on or before 29.03.2021. If the appellant complies with the said condition within 7 days there from, the appellant shall file their objections by treating the impugned assessment orders dated 25.02.2019 as show cause notices, file the documents which they propose to rely upon. The Assessing Officer upon going through the same and familiarizing himself with the subject, shall afford an opportunity of personal hearing to the authorized representative of the appellant, hear the appellant in full and pass a speaking order on merits and in accordance with law. - Honourable Mr. Justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts, the learned Writ Court, further, rightly noted that the rule of alternate remedy is not a rule of compulsion, but it is a rule of discretion. Though it is not an absolute rule, the same has to be applied with utmost rigour when it comes to matters relating to tax, cess etc. 6.With regard to the allegation of violation of principles of natural justice, which was taken as a ground in the writ petitions, the learned Single Bench took a view that opportunity was afforded to the appellant not once, but twice, but they did not avail the same. Therefore, it ultimately concluded that the Writ Court will not exercise its discretion and the writ petitions are not maintainable. Though we fully agree with the legal aspect as brought out by the learned Single Bench in the impugned order, we have taken note of the factual position in the assessee's case and would make a slight departure from the ultimate conclusion reached by the learned Single Bench. Though we fully agree with regard to the opinion rendered by the learned Single Bench qua the availment of alternate remedy in respect of cases arising under tax statute, we are inclined to take a slightly different view on the concluding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be construed in accordance with the said Circular which is by way of contemporanea exposito. So when a specific demand is made for personal hearing the reasonable opportunity of showing cause should include the same in the interest of fairness in procedure. 23. The finding of the learned single Judge that the writ petition cannot be entertained in view of the non-exhaustion of alternative remedy by the petitioner cannot be sustained in the facts of the case. 24. It is well settled that the existence of an alternative remedy does not oust the jurisdiction of a writ court under Article 226 of the Constitution. Such jurisdiction is plenary in nature. But the existence of alternative remedy operates as an automatic restrain on the discretion of the writ court in the exercise of its jurisdiction. But law in this aspect is well settled and there are well known exceptions where a writ petition is entertained despite non-exhaustion of statutory remedy. If any one of the exceptions exists, it is open to the writ court to exercise its jurisdiction. Those exceptions are if a writ petition has been filed for an enforcement of any fundamental right where there has been a violation of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part, we have also noted that the current situation is not very conducive both for the appellant as well as the state exchequer and the appellant has also claimed for refund, which according to them, they are rightfully entitled. This Court deems it appropriate to modify the ultimate conclusion arrived at by the learned Single Bench by directing an opportunity to be granted to the appellant, which shall be subject to certain conditions. 9.In the light of the above, the writ appeals are allowed and the ultimate conclusion arrived at by the learned Single Bench for dismissing the writ petitions is set aside and the appellant is directed to remit 15% of the disputed tax for each of the assessment years on or before 29.03.2021. If the appellant complies with the said condition within 7 days there from, the appellant shall file their objections by treating the impugned assessment orders dated 25.02.2019 as show cause notices, file the documents which they propose to rely upon. The Assessing Officer upon going through the same and familiarizing himself with the subject, shall afford an opportunity of personal hearing to the authorized representative of the appellant, hear the appellant i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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