9911796707
TMI Blog2022 (5) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Act, 1987, it is found that petitioner has got speedy and efficacious remedy and even can get interim relief also. The impugned orders passed by the first Appellate authority are neither without jurisdiction nor it is in violation of principle of natural justice nor there is any procedural illegality during the impugned proceeding before the first Appellate authority which petitioner intends to challenge in the instant Writ Petitions on the ground of alleged wrongful interpretation of relevant provisions of law and mode of computation of tax adopted by the assessing officer which according to me cannot be a ground for invoking the constitutional writ jurisdiction of this Court by avoiding the statutory alternative remedy by further Appeal before the West Bengal Taxation Tribunal if petitioner is so aggrieved unless petitioner is able to make out a case that the nature of dispute it wants adjudication by this Writ Court is specifically barred under the statute for the adjudication by the Tribunal or the nature of relief petitioners have asked in this writ proceeding could not be granted by the Tribunal which is the second Appellate authority. These Writ Petitions against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assing the assessment order, assessing officer has wrongly interpreted law set out in Bengal Agricultural Income Tax Act, 1944 and a circular in question published through Gazette Notification dated 23rd August, 2006 and that the petitioner is aggrieved by the method of computation adopted by the assessing officer in his assessment as appears from the grounds taken in the Writ Petition. From nowhere it appears on perusal of the pleadings and grounds in the Writ Petition challenging the impugned order of the first Appellate authority that the same is without jurisdiction or it has violated the principles of natural justice while passing the impugned order or any procedural irregularity has been committed by the first Appellate authority in passing the impugned order. It is not the case of the petitioner that no alternative remedy is available before any forum under the statute against the aforesaid impugned order or that the alternative remedy available is not speedy and efficacious for redressal of its grievance or that there is specific bar under the statute on the second appellate authority/Tribunal to adjudicate the issues involved or arising out of the impugned order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of Section 36 of the Bengal Agricultural Income Tax Act, 1944 and further submits that under the said Tribunal Act, 1987 jurisdiction of a Single Bench of the High Court has been completely ousted under Article 226 of the Constitution. Learned Advocate further submits that the instant Writ Petition should not be entertained since the main ground of challenge before this Writ Court against the impugned order of the first Appellate authority is about misinterpretation of relevant provisions of law by the assessing officer in assessment proceeding and terming the same as pure question of law, West Bengal Taxation Tribunal is competent enough under the statute to decide such question of law as well as on merit of the assessment. He also submits that when the petitioner itself has already chosen to avail the alternative remedy at the first instance by preferring appeal before the first Appellate authority against the assessment order in question and remedy before the Taxation Tribunal by way of further Appeal is speedy and efficacious and the Tribunal has got the power to grant any interim relief also as would appear from the relevant provisions of West Bengal Taxation Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l exercise, with effect from such date as may be specified by the State Government by notification in this behalf, all the jurisdiction, powers and authority exercisable immediately before that day by all Courts including the High Court but excluding the Supreme Court of India for adjudication or trial of disputes or complaints or offences with respect to all matters of levy, assessment, collection and enforcement of any tax under any specified State Act and matters connected therewith or incidental thereto: Provided that where the matter relates to disposal of question of constitutional validity of any provision of any specified State Act, the matter shall be decided by a Bench constituted of at least three Members of which the Chairman shall be one. (2) Notwithstanding anything contained elsewhere in this Act, all proceedings triable by any Court or Courts in accordance with the provisions of the Code of Criminal Procedure, 1973, shall continue to be tried by such Court. and the Tribunal shall have no jurisdiction to try such proceedings. Explanation .-For the purpose of this sub-section, proceedings shall include proceedings under Chapter XXIX and Chapter XXX o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or taken, as the case may be, within sixty days prior to the commencement of the aforesaid clause (a) of the said section and that he has not moved the High Court against such order or action passed or taken under the specified State Act. (3) Save as provided expressly in this Act, the Tribunal shall not ordinarily admit an application referred to in sub-section (1) unless it is satisfied that- (a) the applicant has availed of all remedial measures available to him under the relevant specified State Act; or (b) the remedial measures available under the provisions of the relevant specified State Act are not adequate and shall cause undue hardship to the applicant; or (c) the application referred to in sub-section (1) involves a substantial question of law relating to the interpretation of the Constitution of India or the specified State Act or rules framed thereunder or of jurisdiction of any of the authorities under the said specified State Act. (4) The Tribunal may, if satisfied after such enquiry as it may deem fit that the requirements under this Act and the rules made thereunder are complied with in relation to the application referred to in sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the High Court on the date of coming into force of sub-section (1) of section 6, shall stand transferred to the Tribunal for disposal in accordance with the provisions of this Act: Provided that, if any matter or any proceeding has been heard in part or heard but judgment is not delivered on or before the aforesaid date, nothing in this section shall apply to such matter or proceeding. Explanation .-No application or proceeding shall be deemed to have been heard in part only by reason of any interim order having been passed therein. ................................................. Section 36 of the Bengal Agricultural Income Tax Act, 1944: 36. Procedure of appeal to the Appellate Tribunal. - (1) Any assessee objecting to an order passed by the Assistant Commissioner under section 32 or section 35 may appeal to the Appellate Tribunal within sixty days of the date on which such order is communicated to him.. (2) The Commissioner may, if he objects to an order passed by the Assistant Commissioner under section 35, direct the Agricultural Income-tax Officer to appeal to the Appellate Tribunal against such order and in such case the Agricultura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ternative remedy. The Supreme Court in paragraphs 94, 95 and 100 of the said judgment very clearly states that the Tribunals would act as the court of first instance from which a writ petition may lie but to a Division Bench of the Hon ble High Court. As a court of first instance the Tribunal completely ousts the jurisdiction of the single Bench of the respective High Courts and the matters pending before the Single Bench of the High Court from the date of the functioning of the Tribunal would stand transferred to the Tribunal. The relevant passages from the said judgment are stated hereinbelow- 94. Before moving on to other aspects, we may summarise our conclusions on the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional setup, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated. Learned Counsel appearing for the State respondents in support of his contention that in the facts and circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgments but at the same time law has also been laid down as to what are the exceptional circumstances under which in spite of availability of statutory alternative remedy by way of Appeal, Writ Petition is maintainable and in my considered opinion the instant writ petitions do not fall within the categories of those exceptional facts and circumstances and the cases relied upon by the petitioner are totally different from the present case particularly in the context of and relating to the ambit and scope of the West Bengal Taxation Tribunal Act, 1987, Bengal Agricultural Income Tax Act and further in none of the aforesaid cases of the Hon ble Supreme Court which have been relied upon by the petitioner, Constitution Bench decision of the Hon ble Supreme Court in the case of L. Chandrakumar (supra) was referred or relied by any of the parties in those decisions. (ii) Other peculiar facts in these Writ Petitions are that at the first instance petitioners have chosen to avail the alternative remedy by challenging the assessment orders in question by way of statutory appeal before the first Appellate authority and after the dismissal of the same and confirmation of the assessment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground of alleged wrongful interpretation of relevant provisions of law and mode of computation of tax adopted by the assessing officer which according to me cannot be a ground for invoking the constitutional writ jurisdiction of this Court by avoiding the statutory alternative remedy by further Appeal before the West Bengal Taxation Tribunal if petitioner is so aggrieved unless petitioner is able to make out a case that the nature of dispute it wants adjudication by this Writ Court is specifically barred under the statute for the adjudication by the Tribunal or the nature of relief petitioners have asked in this writ proceeding could not be granted by the Tribunal which is the second Appellate authority. In view of the reasonings and discussion made above, I am not inclined to entertain these Writ Petitions against the impugned orders of the first Appellate authority dated 26th March, 2021 and 18th February, 2021 respectively and both these Writ Petitions being WPA 4305 of 2022 with WPA 4308 of 2022 are accordingly dismissed. No order as to costs. However, dismissal of these Writ Petitions will not be a bar for the petitioner to challenge the impugned orders of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
