ORDER IS APPELABLE-WHETHER WRIT LIES-HELD, When an order is passed by the Authority, which has no jurisdiction or there is violation of principles of natural justice, the petitioner can approach the Court directly without exhausting the remedy of appeal and the High Court can exercise its power under Articles 226 & 227 of the constitution of India-ONFACTS, HELD, The Assessment order has been passed by the competent Authority after following the procedure in accordance with law-Not a fit case for exercising power under Articles 226 and 227 of the Constitution of India.
W.P. Dismissed.
ORDER
V.G. Sabhahit, J.
1. This writ petition under Articles 226 and 227 of the Constitution of India is filed being aggrieved by the assessment order passed by the respondent as per Annexure-“F” dated 7-10-2004.
2. It is the case of the petitioner that pursuant to the publication published in the news paper regarding the sale of plant and machinery of the official liquidator in OLR 89/2004, the petitioner came over to Bangalore, who was the successful bidder and the possession of the plant and machineries were handed over to the petitioner on 13/3/2004 and sale certificate has been issued on 13/3/2004. It is further averred that the respondent issued a notice under Section 10 of the Karnataka Sales Tax Act, 1957 (hereinafter referred to as the “Act”) for payment of tax, as he was a non-resident dealer, within 7 days from the date of the receipt of the notice and in response to the said notice, the petitioner replied and thereafter assessment order has been passed on 7/10/2004. Being aggrieved by the same order, this writ petition is filed.
3. It is not disputed that the assessment order passed is appellable in view of the provisions of Section 20 of the Act and the provision of appeal is an effective and afficacious alternative remedy available to the petitioner and wherefore the only question, at this stage, is as to whether this is a fit case for exercising the power under Articles 226 and 227 of the Constitution of India by bypassing the appeal provisions and to a permit the petitioner to challenge the assessment order without exhausting the remedy of appeal.
4. It is well settled that when an order is passed by the authority, which has no jurisdiction or there is violation of principles of natural justice, the petitioner can approach this Court directly without exhausting the remedy of appeal and this Court can exercise power under Articles 226 and 227 of the Constitution of India. It is clear that the assessment order has been passed by the competent Authority and show cause notice was issued and a detailed reply was submitted by the petitioner and thereafter the petitioner was represented by the Counsel before the Assessing Authority and after considering the contentions, assessment order has been passed by the respondent and wherefore, there is no ground to exercise power under Articles 226 and 227 of the Constitution of India without exhausting the remedy of appeal.
5. There is no merit in the contention of the Learned Counsel appearing for the petitioner that having regard to the fact that the petitioner has purchased the goods from the official liquidator and if at all the liability is on the official liquidator and not on the petitioner and no tax liability can be imposed upon the petitioner. The said contention was submitted before the Assessing Authority and the same has been considered and negatived. Since, I have held that this is not a fit case for exercising power under Articles 226 and 227 of the Constitution of India by bypassing the appeal provisions and to permit the petitioner to approach this Court without exhausting the remedy of appeal, it is unnecessary to go into the merits of the petition, as the same would cause prejudice to the petitioner in the appeal that may be filed by him. Accordingly, I hold that in view of the effective and efficacious alternative remedy available to the petitioner, the writ petition is liable to be dismissed and petition is relegated to the appellate Authority.
6. Accordingly, the Writ Petition is dismissed. The petitioner is granted 30 days time from today to prefer an appeal before the Appellate Authority. If an appeal is filed within 30 days from today before the Appellate Authority, same shall be considered by the Authority without reference to the period of limitation and shall dispose of the appeal on merits without being influenced by any observation made in this order.