Kerala Rubber and Reclaims Ltd. Vs. Sales Tax Officer and anr. - Court Judgment

Excerpt:
- - state of orissa [1983]142itr663(sc) the point was very elaborately dealt with in paragraph 11 with the observation that under the scheme of the sales tax enactment there is a hierarchy of authorities before which the assessee could get adequate redress against the wrongful acts complained of. i do not find any reason for this court to exercise its jurisdiction under article 226 of the constitution and deal with the assessments exhibits p1 and p2, when the matter could be dealt effectively by the appellate authorities functioning under the act.t.l. viswanatha iyer, j.1. this original petition which challenges the orders of assessment, exhibits p1 and p2, appears to have been admitted because of the challenge contained therein to explanation 3b to sub-section (xxi) of section 2 and clause (iii) of sub-section (1) of section 5 of the kerala general sales tax act, 1963. i do not find any substance in this challenge, for the reason that explanation 3b only bodily incorporates the provisions of clause (d) of article 466(29a) of the constitution without any change in it. if that section is valid, there is no scope for any challenge to the other provision mentioned by the petitioner. faced with this situation counsel for the petitioner stated that what was under challenge was the constitution (forty-sixth amendment) act. but that challenge is no longer open having regard to the decision of the supreme court in builders association of india v. union of india [1989] 73 stc 370 decided as early as on march 31, 1989. despite this decision rendered two years earlier the same constitution amendment is challenged in this original petition filed on february 22, 1991. though i scanned the original petition minutely, i could not find any real ground of challenge to the said amendment. there is therefore no substance in the constitutional question raised or in the challenge to the provisions of the act, which as i mentioned earlier, truly reflect the provisions of article 466(29a)(d) of the constitution. i therefore overrule this plea of the petitioner.2. all the other contentions raised by the petitioner are on the merits of the assessments, exhibits p1 and p2, which could really be gone into by the appellate authority constituted under section 34 of the kerala general sales tax act, 1963. some of these questions are questions of fact which cannot be gone into in this proceeding under article 226 of the constitution.3. the supreme court has repeatedly held that where efficacious alternative remedy by way of appeal and second appeal is provided under the sales tax enactment, the high court should not exercise its jurisdiction under article 226 of the constitution of india to deal with the assessment on the merits. in titaghur paper mills co. ltd. v. state of orissa : [1983]142itr663(sc) the point was very elaborately dealt with in paragraph 11 with the observation that under the scheme of the sales tax enactment there is a hierarchy of authorities before which the assessee could get adequate redress against the wrongful acts complained of. he has got a right of appeal and second appeal with a further resort to the high court by way of tax revision case. when such a chain of remedies to challenge the order of assessment is provided, it shall be challenged only in the manner prescribed by the act and not by way of a petition under article 226 of the constitution. this was reiterated in the subsequent decision of the supreme court in assistant collector of central excise v. dunlop india ltd. : 1985ecr4(sc) .4. the kerala act provides ample remedies to the petitioner to get redress in relation to assessments made under the act. i do not find any reason for this court to exercise its jurisdiction under article 226 of the constitution and deal with the assessments exhibits p1 and p2, when the matter could be dealt effectively by the appellate authorities functioning under the act. the fact that there was an incidental challenge to the provisions of the act. which as i mentioned earlier is totally unfounded having regard to the decision of (he supreme court rendered two years prior to the filing of the original petition is no ground to entertain this writ petition and deal with the challenge to the assessments as if this court were functioning as an appellate assistant commissioner. i therefore decline to entertain this original petition on the merits of the case and leave the petitioner to pursue his remedy before the appellate forum provided by section 34 of the act.5. at the same time the petitioner should not be deprived of the appellate remedy because of the delay, inasmuch as he has come forward with this writ petition within a month of receipt of the orders of assessment, namely, january 25, 1991, as stated in the original petition.accordingly i dispose of the original petition with the following directions : the petitioner is permitted to file appeals against the orders, exhibits p1 and p2, on or before march 11, 1994, if he has not already done so. if the appeals are so filed, the said appeals will be dealt with and disposed of by the appellate authority functioning under section 34 of the act as if they had been filed in time. the collection of the tax demanded as per exhibits p1 and p2 will be kept in abeyance till and inclusive of march 21. 1994 to enable the petitioner to move the appellate authority for appropriate orders of stay. there will be no order as to costs.