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TMI Blog2019 (10) TMI 1518X X X X Extracts X X X X X X X X Extracts X X X X ..... n alternative remedy is available, the writ petition against the re-assessment is not maintainable - In view of the clear pronouncement of the Supreme Court in Chhabil Dass Agarwal [ 2013 (8) TMI 458 - SUPREME COURT] the Writ Petition filed directly challenging the assessment/re-assessment order is not maintainable in view of existence of alternative remedy of appeal under Section 48 of the VAT Act. Whether the deemed assessment is also an assessment under Section 22 (1) of the VAT Act, therefore, a re-assessment of the deemed assessment is not impermissible? - HELD THAT:- The issue is not decided on merits for the reason that having found the writ petition not maintainable, the writ petitioner is directed to be relegated before the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessment years 2010-11, 2011-12 2012-13 the assessee submitted its return along with the audit report and other statutorily required documents. It is the case of the writ petitioner that no order of assessment was passed in the original assessment proceedings in accordance with Section 21 (7) of the VAT Act and, as such, it was a case of deemed assessment. The assessing authority thereafter issued notice on 30.06.2016 for re-assessment which was opposed by the assessee by filing preliminary objection, however, without considering the objection, the order of re-assessment dated 26.12.2016 was passed by the Assessment Officer against which the writ petitions were preferred. 4. Learned Single Judge has referred to the judgments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in Chhabil Dass Agarwal (supra) has held thus in paras 15 and 16 :- 15. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case {AIR 1964 SC 1419}, Titaghur Paper Mills case {(1983) 2 SCC 433} and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 SCC 444 and held thus in paragraphs 14, 15 and 16:- 14. In our considered view, at the said stage of issuance of the notices under Section 153C, the assessee could have addressed his grievances and explained his stand to the Assessing Authority by filing an appropriate reply to the said notices instead of filing the Writ Petition impugning the said notices. It is settled law that when an alternate remedy is available to the aggrieved party, it must exhaust the same before approaching the Writ Court. In Bellary Steels and Alloys Ltd. v. CCT, (2009) 17 SCC 547, this Court had allowed the assessee therein to withdraw the original Writ Petition filed before the High Court as the said proceedings came to be filed against the show cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the said stage of proceedings, the High Court ought not have entertained the Writ Petition and instead should have directed the assessee to file reply to the said notices and upon receipt of a decision from the Assessing Authority, if for any reason it is aggrieved by the said decision, to question the same before the forum provided under the Act. 9. Relying on the judgments of the Supreme Court, the Division Bench of this Court in Income Tax Officer -1 Ors. v Smt. Kamala Ojha8 has also held that when alternative remedy is available, the writ petition against the re-assessment is not maintainable. 10. In view of the clear pronouncement of the Supreme Court in Chhabil Dass Agarwal (supra), we are of the considered view that the W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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