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TMI Blog2024 (2) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Assam Vs. Barak Upatyaka D.U. Karmachari Sanstha [ 2009 (3) TMI 992 - SUPREME COURT] and State of Madhya Pradesh Ors. Vs. Commercial Engineers and Body Building Company Limited. [ 2022 (10) TMI 576 - SUPREME COURT] as referred above, we see no reason to interfere in this matter as the proceedings are still pending before the concerned Assessing Authority where the petitioner is certainly having liberty to file the available under the law. raise all his objections as So far as the interim passed by the Coordinate Bench at Principal Seat, Jodhpur in the matter of Krishna Kumar [ 2023 (7) TMI 1360 - RAJASTHAN HIGH COURT] relied upon by counsel for the petitioner is concerned, the said order was passed as an interim measure, which has not decided the issue finally. In our considered view, since we are deciding the matter finally at the request of counsel for the petitioner himself, the said interim order passed by the Coordinate Bench does not help to the petitioner in view of the judgment passed by the Hon ble Supreme Court in the matter of State of Assam [ 2009 (3) TMI 992 - SUPREME COURT] . We are also of the view that in number of petitions filed under Article 226 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered the submissions made by counsel for the parties and perused the record. 8. The Hon ble Supreme Court in the matter of Union of India (UOI) and Ors. Vs. Coastal Container Transporters Association Ors., reported in (2019) 20 SCC 446 in para-19 has held as under :- 19. On the other hand, we find force in the contention of the learned senior Counsel, Sri Radhakrishnan, appearing for the Appellants that the High Court has committed error in entertaining the writ petition Under Article 226 of Constitution of India at the stage of show cause notices. Though there is no bar as such for entertaining the writ petitions at the stage of show cause notice, but it is settled by number of decisions of this Court, where writ petitions can be entertained at the show cause notice stage. Neither it is a case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain the writ petition at the stage of notice. High Court ought not to have entertained the writ petition, more so, when against the final orders appeal lies to this Court. The judgment of this Court in the case of Union of India and Anr. v. Guwahati Carbon Ltd. (supra) relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se notice and in case any adverse order is passed against the Appellant, then liberty has been granted to approach the High Court... ...in our view, the High Court was absolutely right in dismissing the writ petition against a mere show cause notice. It is thus well settled that writ petition should normally not be entertained against mere issuance of show cause notice. In the present case no show cause notice was even issued when the High Court had initially entertained the petition and directed the Department to prima facie consider whether there was material to proceed with the matter. 10. The Hon ble Supreme Court in the matter of the State of Madhya Pradesh Ors. Vs. Commercial Engineers and Body Building Company Limited, reported in 2022/INSC/1088 in para-6 has held as under :- 6. At this stage, a recent decision of this Court in the case of The State of Maharashtra and Ors. v. Greatship (India) Limited (Civil Appeal No. 4956 of 2022, decided on 20.09.2022) is required to be referred to. After taking into consideration the earlier decision of this Court in the case of United Bank of India v. Satyawati Tondon and Ors., reported in MANU/SC/0541/2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o go into the correctness of the decision of the High Court and whether the order passed by the Tribunal was correct or not has to be decided before an appropriate forum. 6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal Under Section 20 and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings Under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the Court Under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition Under Article 227 of the Constitution and should have directed the Respondent to take recourse to the appeal mechanism provided by the Act. 51. In CCT v. Indian Explosives L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s placing all the relevant facts truly and accurately for the consideration of the Court and particularly in cases where public revenue and public interest are involved. Such directions are always required to be complied with by the State. No relief could be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter-affidavit opposing the writ petition. Further, empty and self-defeating affidavits or statements of Government spokesmen by themselves do not form basis to grant any relief to a person in a public law remedy to which he is not otherwise entitled to in law. 53. In Raj Kumar Shivhare v. Directorate of Enforcement [MANU/SC/0249/2010 : (2010) 4 SCC 772] the Court was dealing with the issue whether the alternative statutory remedy available under the Foreign Exchange Management Act, 1999 can be bypassed and jurisdiction Under Article 226 of the Constitution could be invoked. After examining the scheme of the Act, the Court observed: (SCC p. 781, paras 31-32) 31. When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignorin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an abuse of process of law, certainly in that case, the writ court would not hesitate to interfere even at the stage of issuance of show cause notice. The interference at the show cause notice stage should be rare and not in a routine manner. Mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, interference is ruled out. 13. Apparently, the notice issued to the petitioner under Section 148 of the Act of 1961 is only a show cause notice for which undoubtedly the petitioner is having remedy to file reply raise all objections before the Assessing Authority where the proceedings are going on. Thus, considering the judgments passed by the Hon'ble Supreme Court, as referred above, we see no reason to interfere in this matter as the proceedings are still pending before the concerned Assessing Authority where the petitioner is certainly having liberty to file the available under the law. raise all his objections as 14. So far as the interim passed by the Coordinate Bench at Principal Seat, Jodhpur in the matter o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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