{"id":16330,"date":"1983-04-13T00:00:00","date_gmt":"1983-04-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/titaghur-paper-mills-co-ltd-vs-state-of-orissa-on-13-april-1983"},"modified":"2015-07-16T03:52:23","modified_gmt":"2015-07-15T22:22:23","slug":"titaghur-paper-mills-co-ltd-vs-state-of-orissa-on-13-april-1983","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/titaghur-paper-mills-co-ltd-vs-state-of-orissa-on-13-april-1983","title":{"rendered":"Titaghur Paper Mills Co. Ltd vs State Of Orissa on 13 April, 1983"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Titaghur Paper Mills Co. Ltd vs State Of Orissa on 13 April, 1983<\/div>\n
Equivalent citations: 1983 SCR (2) 743, \t 1983 SCC (2) 433<\/div>\n
Author: A Sen<\/div>\n
Bench: Sen, A.P. (J)<\/div>\n
           PETITIONER:\nTITAGHUR PAPER MILLS CO. LTD.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF ORISSA\n\nDATE OF JUDGMENT13\/04\/1983\n\nBENCH:\nSEN, A.P. (J)\nBENCH:\nSEN, A.P. (J)\nVENKATARAMIAH, E.S. (J)\nMISRA, R.B. (J)\n\nCITATION:\n 1983 SCR  (2) 743\t  1983 SCC  (2) 433\n 1983 SCALE  (1)437\n\n\nACT:\n     Sales-tax-Central Sales  Tax Act, 1956-Repeated notices\nfor production\tof records  issued to assessee-Best judgment\nassessment  made-Assessee,   if\t could\timpugn\torder  under\nArticle 226 of the Constitution.\n\n\n\nHEADNOTE:\n     It appears\t that proceedings  under  r.  12(5)  of\t the\nCentral Sales  Tax (Orissa)  Rules 1957 and under sub-s. (4)\nof s.  12 of  the Orissa  Sales Tax Act, 1947 were initiated\nagainst the  petitioners for  the assessment year 1980-81 in\nrelation to  assessment of  tax on  sales in  the course  of\ninter-state trade  and commerce\t under the Central Sales Tax\nAct, 1956  and inside  sales effected  during  the  year  in\nquestion under\tthe Orissa  Sales  Tax\tAct,  1947.  Despite\nrepeated opportunities\tto  get\t themselves  ready  for\t the\nassessment of  tax and\tto produce  their account  books and\nother documents, they sought adjournments on the one pretext\nor another.  Eventually the  Assistant\tSales  Tax  Officer,\nCuttack\t II  circle,  Cuttack  before  whom  the  assessment\nproceedings were  pending,  refused  to\t grant\tany  further\nadjournment and\t proceeded to  best judgment  assessment and\ntreated the  gross turnover  of\t Rs.  7,13,94,903.63  p.  as\nreturned by  the petitioners  for purposes  of\tthe  Central\nSales Tax Act, 1956 to be their taxable turnover. Similarly,\nhe treated  the\t gross\tturnover  of  Rs.  2,02,07,852.65  p\nreturned by  the petitioners  as representing  inside  sales\nvis-a-vis the  State of Orissa to be their taxable turnover.\nAfter allowing\tadjustment of Rs. 27,88,388.47 p paid by the\npetitioners, the  learned Sales\t Tax Officer raised a demand\nfor the\t payment of  a sum of Rs. 43,57,101.89 p towards tax\non sales  in the  course of  inter-State trade\tand commerce\npayable under  the Central  Sales Tax  Act, 1956  and  after\nallowing  adjustment  of  Rs.  1,08,480.11  p  paid  by\t the\npetitioners, he\t raised the  demand for\t payment of a sum of\nRs. 13,06,  069.60 p  as tax  payable under the Orissa Sales\nTax Act,  1947. Thus the petitioners were faced with a total\ndemand of  Rs. 56,57,171.49  p for the assessment year 1980-\n81. The petitioners instead of preferring appeals under sub-\ns (1)  of s.  23 of  the Act filed petitions before the High\nCourt under  Art. 226  of the  Constitution challenging\t the\nvalidity of the two orders of assessment. The High Court was\nnot satisfied  that this  was a\t case of  inherent  lack  of\njurisdiction or\t any  violation\t of  principles\t of  natural\njustice and  accordingly held that they were not entitled to\ninvoke the  extraordinary jurisdiction\tof  the\t High  Court\nunder Art. 226 of the Constitution,\n     Dismissing the Petitions,\n^\n     HELD: In  the provenance, of tax where the Act provides\nfor a  complete\t machinery  which  enables  an\tassessee  to\neffectively raise in the courts the question of the validity\nof an assessment denied an alternative jurisdiction\n744\nto the\tHigh Court  to\tinterfere  under  Art.\t226  of\t the\nConstitution. The  phrase \"made under the Act\" describes the\nprovenance of  the assessment;\tit does\t not relate  to\t its\naccuracy in  point of law. The use of the machinery provided\nby the Act, not the result of that use, is the test. [748 G-\nH; 749 A]\n     Under the\tscheme of  the Act,  there is  hierarchy  of\nauthorities before  which the  petitioners can\tget adequate\nredress against\t the wrongful  act complained  of. They have\nthe  right   to\t prefer\t an  appeal  before  the  prescribed\nauthority under\t sub-s. (1) of s. 23 of the Act. If they are\ndissatisfied with  the decision\t in  the  appeal,  they\t can\nprefer a  further appeal to the Tribunal under sub-s. (3) of\ns. 23  of the Act, and then ask for a case to be stated on a\nquestion of  law for  the opinion of the High Court under s.\n24 of  the Act. The Act provides for a complete machinery to\nchallenge an order of assessment, and the impugned orders of\nassessment can\tonly be challenged by the mode prescribed by\nthe Act\t and not  by  a\t petition  under  Art.\t226  of\t the\nConstitution. [751 F-H]\n     Raleigh Investment\t Company Limited v. Governor General\nin Council, 74 IA 50, followed.\n     K.S. Venkataraman & Co. v. State of Madras<\/a> [1966] 2 SCR\n229 and\t State of  Uttar Pradesh v. Mohammad Nooh<\/a> [1958] SCR\n595; distinguished.\n     The question  whether a provision is ultra vires or not\ncannot obviously  be  decided  by  any\tof  the\t authorities\ncreated by  the Act  and therefore  cannot  be\tthe  subject\nmatter of  a reference\tto the\tHigh Court  or a  subsequent\nappeal to this Court. No such question arises in a case like\nthe present  where the impugned orders of assessment are not\nchallenged on  the ground that they are based on a provision\nwhich  is   ultra  vires.  This\t is  a\tcase  in  which\t the\nentrustment of\tpower to  assess is  not in  dispute and the\nauthority within  the limits  of his  power is a Tribunal of\nexclusive  jurisdiction.   The\tchallenge  is  only  to\t the\nregularity of  the proceedings\tbefore the learned Sales Tax\nOfficer as  also his  authority to  treat the gross turnover\nreturned by  the petitioners  to be  the  taxable  turnover.\nInvestment of  authority to  tax involves  authority to take\ntransactions which  in exercise\t of his authority the taxing\nofficer regards\t as taxable  and not merely authority to tax\nonly those  transactions which\tare, on\t a true\t view of the\nfacts and  the law,  taxable. There  is no justification for\nextending the  principles laid\tdown in\t Raleigh  Investment\nCompany's case\tor Mohammad  Nooh's case  to a case like the\npresent where  there is\t an assessment\tmade by\t the learned\nSales Tax Officer under the Act. [749 E-H; 753 A-B]\n     The question  whether another  adjournment should\thave\nbeen granted or not was within the discretion of the learned\nSales Tax  Officer and\tis a  matter which  can properly  be\nraised in  an appeal  under sub-s.  (1)\t of  s.\t 23  of\t the\nAct.[751 D]\n     The rule  laid  down  in  Mohammad\t Nooh's\t case  which\nrequires the exhaustion of alternative remedies is a rule of\nconvenience and\t discretion, rather than a rule of law. [751\nE]\n745\n     The Act  provides for  an adequate safeguard against an\narbitrary or  unjust assessment. The petitioner have a right\nto prefer  an appeal  under sub-s.  (1) of  s. 23 of the Act\nsubject to  their payment  of an  admitted amount  of tax as\nenjoined by  the proviso  thereto. As  regards the  disputed\namount of  tax, they have the remedy of applying for stay of\nrecovery to  the Commissioner  of Sales Tax under cl. (a) of\nthe second  proviso to sub-s. (1) of s. 13 of the Act. It is\nfor the\t Commissioner to  decide whether or not there should\nbe such\t stay on such terms and conditions as he thinks fit,\nlooking to  the nature of the demand raised in the facts and\ncircumstances of the present case. [752 E-F; 753B-C]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Special  Leave  Petition
\nNos. 4513-14 of 1983.\n<\/p>\n
     From the  Judgment and Order dated the 10th March, 1983
\nof the Orissa High Court in O.J.C. No. 590 of 1983.\n<\/p>\n
\t\t\t    WITH
\n\t    Writ Petition Nos. 3363-64 of 1983.\n<\/p>\n
\t   (Under Article 32 of the Constitution)
\n     S.R. Banerjee  and Vinoo  Bhagat for the Petitioners in
\nS.L.P.\n<\/p>\n
     Vinoo Bhagat for the Petitioner in Writ Petition.
\n     F.S. Nariman,  V.S. Desai,\t and  R.K.  Mehta:  for\t the
\nRespondent in S.L.P.\n<\/p>\n
     S,K. Mehta, for the Respondent in Writ Petition.
\n     The Judgment of the Court was delivered by
\n     SEN, J.  These two special leave petitions are directed
\nagainst an  order of  the Orissa  High Court dated March 18,
\n1983 dismissing\t the Writ Petitions flied by the petitioners
\nin limine challenging the two orders of assessment passed by
\nthe Assistant  Sales Tax Officer, Cuttack II Circle, Cuttack
\ndated February\t16, 1983. The connected petitions under Act.
\n32 of  the Constitution\t are by\t an Officer  of the  Company
\nchallenging the two orders of assessment.\n<\/p>\n
     By\t one   of  the\t Writ  Petitions,   the\t petitioners
\nchallenged the validity of the order of assessment under the
\nCentral Sales  Tax Act, 1956 for the assessment year 1980-81
\npassed by  the\tAssistant  Sales  Tax  Officer,\t Cuttack  II
\nCircle, Cuttack\t dated February\t 16, 1983  under r.15 of the
\nCentral Sales  Tax (Orissa)  Rules, 1957  treating the gross
\nturnover of Rs. 7, 13, 94, 903. 63p. as returned by the
\n746<\/span>
\npetitioners to be their taxable turnover and the tax payable
\nthereon at  10% at  Rs. 71,39,490.36p.\tBy  the\t other,\t the
\npetitioners  challenged\t  the  validity\t  of  an   order  of
\nassessment under  the Orissa  Sales Tax\t Act. 1947  for\t the
\nassessment year\t 1980-81 passed\t by the\t Assistant Sales Tax
\nOfficer, Cuttack  II Circle, Cuttack dated February 16, 1983
\nunder sub-s.  (4) of  s.12 of the Orissa Sales Tax Act, 1947
\ntreating the  gross  turnover  of  Rs.\t2,02,07,852.65p.  as
\nreturned by the petitioners to be their taxable turnover and
\nthe tax payable thereon at 7% at Rs. 14,14,549.71p.\n<\/p>\n
     It appears\t from the impugned orders of assessment that
\nproceedings under r.12 (5) of the Central Sales Tax (Orissa)
\nRules, 1957 (“Rules” for short) and under sub-s. (4) of s.12
\nof the\tOrissa Sales  Tax Act,\t1947 (“Act”  for short) were
\ninitiated against  the petitioners  for the  assessment year
\n1980-81 in  relation to\t assessment of\ttax on\tsales in the
\ncourse of  inter-state trade  and commerce under the Central
\nSales Tax  Act, 1956  and inside  sales effected  during the
\nyear in\t question under\t the Orissa Sales Tax Act, 1947. The
\nprovisions contained in r. 12 (5) of the Rules and in sub-s.
\n(4) of\ts.12 of\t the Act  enjoin the affording of reasonable
\nopportunity to\tthe dealer for completion of assessment. The
\nlearned Sales  Tax Officer  observes that  he gave  repeated
\nopportunities to the petitioners to get themselves ready for
\nthe assessment of tax and to produce their account books and
\nother documents\t but they sought adjournments on one pretext
\nor another. Eventually on February 16,1983 the learned Sales
\nTax Officer refused to grant any further adjournment holding
\nthat  the   petitioners\t had   sufficient  opportunity\t and
\naccordingly proceeded  to best\tjudgment under\tr.15 of\t the
\nRules and  sub-s. (4)  of s.12 of the Act. In the absence of
\nany  material,\t the  learned  Sales  Tax  Officer  made  an
\nassessment under  r.15\tof  the\t Rules\ttreating  the  gross
\nturnover of  sales in  the course  of inter-State  trade and
\ncommerce amounting  to Rs.  7,13,94,903.63p. as\t returned by
\nthe petitioners\t under the Central Sales Tax Act, 1956 to be
\ntheir taxable turnover and the tax payable thereon at 10% at
\nRs. 71,39,490.36p.  After  allowing  an\t adjustment  of\t Rs.
\n27,88,388.47p.\tpaid  by  the  petitioners  along  with\t the
\nquarterly return, the learned Sales Tax Officer has raised a
\ndemand for  payment  of\t a  sum\t of  Rs.  43,51,101.89p.  He
\ndisallowed their claim for deduction of Rs. 6,74,99,085.65p.
\nrepresenting sales  to registered dealers and departments of
\nGovernment as  well as\tof  Rs.\t 28,24,224.42p.\t claimed  as
\ndeduction on account of tax collected from purchasers as the
\nrequisite declarations\tin Form ‘C’ were not forthcoming. He
\nalso  disallowed   the\tconcessional  rate  of\ttax  at\t 4%.
\nSimilarly, while
\n747<\/span>
\nmaking an  assessment under sub-s. (4) of s.12 of the Orissa
\nSales Tax Act, 1947, he treated the gross turnover of inside
\nsales amounting\t to Rs.\t 2,02,07,852.65p. as returned by the
\npetitioners to be their taxable turnover and the tax payable
\nthereon at  7% at  Rs. 14,14,549.  71p.\t After\tallowing  an
\nadjustment of  Rs. 1,08,480.11p.  paid\tby  the\t petitioners
\nalong with  the quarterly  return,  the\t learned  Sales\t Tax
\nOfficer has  raised a  demand for  payment of  a sum  of Rs.
\n13,06,069.60p. It  would thus  appear that  by the  impugned
\norders of  assessment the petitioners are faced with a total
\ndemand of  Rs. 56,57,171.49p.  for the assessment year 1980-\n<\/p>\n
81. The petitioners instead of preferring appeals under sub-
\ns. (1)\tof s.  23 of the Act filed petitions before the High
\nCourt under  Art. 226  of the  Constitution challenging\t the
\nvalidity of the two orders of assessment.\n<\/p>\n
     The only  contention raised  before the  High Court was
\nthat the  impugned orders of assessment being a nullity, the
\npetitioners  were   entitled  to  invoke  the  extraordinary
\njurisdiction of\t the  High  Court  under  Art.\t226  of\t the
\nConstitution, but the High Court was not satisfied that this
\nwas a  case of inherent lack of jurisdiction. The High Court
\nwhile dismissing the writ petitions observed:\n<\/p>\n
\t  “Having heard\t the learned  counsel for  both\t the
\n     parties and having gone through the records, we are not
\n     inclined to  interfere with  the impugned\torder (s) in
\n     exercise with  our\t extra-ordinary\t jurisdiction  since
\n     there is  a right\tof appeal  against the\tsame. It  is
\n     contended on behalf of the petitioner that the impunged
\n     order being  a nullity is entitled to invoke our extra-
\n     ordinary jurisdiction.  We are  not satisfied that this
\n     is a case of inherent lack of jurisdiction. There is no
\n     violation of principles of natural justice.”<\/p><\/blockquote>\n
     In support of these petitions, the submissions advanced
\nby learned  counsel  for  the  petitioners  rest  purely  on
\nprocedural irregularities  or touch  upon the  merits of the
\nassessments. Broadly  speaking, the  contentions were  that:
\n(1) The\t learned Sales\tTax  Officer  had  no  authority  or
\njurisdiction while  making an  assessment under r. 15 of the
\nCentral Sales  Tax (Orissa)  Rules, 1957  to treat the gross
\nturnover as  returned by the petitioners to be their taxable
\nturnover. (2)  He was not justified in disallowing the claim
\nfor deduction  of Rs. 6,74,99,085.65p. representing sales to
\nregistered dealers  and departments of Government as well as
\nof Rs.\t28,24,224.42p. on  account of tax collected from the
\npurchasers from the gross
\n748<\/span>
\nturnover of  sales in  the course  of inter-State  trade and
\ncommerce amounting  to Rs.  7,13,94,903.63p. (3)  He wrongly
\ndenied the  petitioners the benefit of the concessional rate
\nof tax\tat 4%  merely because  they failed  to\tfurnish\t the
\nrequisite declarations\tin Form\t ‘C’ (4)  He could  not, for
\nsimilar reasons, while making an assessment under sub-s. (4)
\nof s.  12 of  the Orissa Sales Tax Act, 1947 treat the gross
\nturnover of  inside sales  amounting to Rs. 2,02,07,852.65p.
\nas returned  by the petitioners to be their taxable turnover
\nnor  was   he  justified  in  disallowing  their  claim\t for
\ndeduction of  Rs. 1,  80, 65, 167.66p. representing sales to
\nregistered dealers merely because they failed to produce the
\nprescribed declarations from registered dealers. (5) And the
\nlearned Sales Tax officer had acted in flagrant violation of
\nthe  rules  of\tnatural\t justice  as  the  petitioners\twere
\ndeprived of  an opportunity  to place  their  case  for\t the
\nassessment  year   in  question.   We  are   afraid,   these
\ncontentions cannot  prevail. It is not for us to say whether
\nor not\tthe learned  Sales  Tax\t Officer  was  justified  in
\nproceeding to best judgment under r. 15 of the Central Sales
\nTax (Orissa)  Rules, 1957  and under  sub-s. (4) of s. 12 of
\nthe Orissa  Sales Tax  Act, 1947 or whether he was justified
\nin  treating   the  gross   turnover  as   returned  by\t the
\npetitioners to\tbe their  taxable turnover or whether he was
\nwrong  in   disallowing\t the   deductions  claimed  for\t the
\nassessment year\t in question.  In the very nature of things,
\nthese are  the questions  which the petitioners should raise
\nin  appeals   preferred\t before\t  the  prescribed  Appellate
\nAuthority under sub-s. (1) of s. 23 of the Act.\n<\/p>\n
     We are  constrained to  dismiss these  petitions on the
\nshort  ground\tthat  the   petitioners\t have\tan   equally
\nefficacious alternative\t remedy by  way of  an appeal to the
\nprescribed authority  under sub-s.  (1) of s. 23 of the Act,
\nthen a\tsecond appeal  to the  Tribunal under sub s. (3) (a)
\nthereof, and  thereafter in the event the petitioners get no
\nrelief, to  have the  case stated to the High Court under s.
\n23 of  the Act.\t In Raleigh  Investment Company\t Limited  v.
\nGovernor  General   in\tCouncil,(1)   Lord  Uthwatt,  J.  in
\ndelivering the\tjudgment of  the Board\tobserved that in the
\nprovenance of  tax where  the Act  provided for\t a  complete
\nmachinery which\t enabled an assessee to effectively to raise
\nin the\tcourts the question of the validity of an assessment
\ndenied an  alternative jurisdiction  to the  High  Court  to
\ninterfere. It is true that the decision of the Privy Council
\nin Raleigh Investment Company’s case, supra, was in relation
\nto a  suit brought for a declaration that an assessment made
\nby the Income Tax Officer was
\n749<\/span>
\na nullity,  and it  was held  by the  Privy Council  that an
\nassessment made\t under the  machinery provided\tby the\tAct,
\neven if\t based on  a provision subsequently held to be ultra
\nvires, was  not a  nullity like\t an order of a court lacking
\njurisdiction and  that s.  67 of  the Income  Tax Act,\t1922
\noperated as  a bar to the maintainability of such a suit. In
\ndealing with the question whether s. 67 operated as a bar to
\na suit\tto set\taside or  modify an  assessment made under a
\nprovision of the Act which is ultra vires, the Privy Council
\nobserved:\n<\/p>\n
\t  “In construing  the section  it is  pertinent,  in
\n     their Lordships  opinion to  ascertain whether  the Act
\n     contains\tmachinery    which   enables   an   assessee
\n     effectively to raise in the courts the question whether
\n     a particular provision of the Income Tax Act bearing on
\n     the assessment  made is  or is  not  ultra\t vires.\t The
\n     presence  of   such  machinery,   though  by  no  means
\n     conclusive, marches  with a construction of the section
\n     which denies  an alternative  jurisdiction\t to  inquire
\n     into the same subject-matter.”<\/p><\/blockquote>\n
     We are  not oblivious  of the  fact that  this Court in
\nK.S. Venkataraman  & Co.  v. State  of Madras,<\/a>(1) in a five-
\nJudge Bench  by a  majority of\t3: 2  has dissented with the
\nview expressed\tby the\tPrivy Council  in Raleigh Investment
\nCompany’s case,\t supra, and  held that an assessment made on
\nthe basis  of a\t provision which  is ultra  vires is  not an
\nassessment made\t under the  Act. It  was observed  that\t the
\nentire reasoning  of the  Judicial Committee  was based upon
\nthe assumption\tthat the  question of  ultra  vires  can  be
\ncanvassed and finally decided through the machinery provided
\nunder the  Income Tax  Act. The\t majority observed  that the
\nhierarchy  of\tauthorities  set  up  under  the  Act  being
\ncreatures of  statute were  not concerned  as to whether the
\nprovisions of  the Act\twere  intra  vires  or\tnot.  If  an
\nassessee raises\t such a\t question, according to the decision
\nof the majority in Venkataraman’s case, supra, the Appellate
\nTribunal can  only reject  it on  the ground  that it has no
\njurisdiction to\t entertain  such  objection  or\t render\t any
\ndecision on  it. As  no such  question can  be raised or can
\neven arise  out of  the order of the Appellate Tribunal, the
\nHigh Court cannot possibly give any decision on the question
\nof ultra  vires because\t its jurisdiction  under s.  66 is a
\nspecial advisory  jurisdiction and  its\t scope\tis  strictly
\nlimited. It  can only decide questions of law that arise out
\nof the order of the Appellate Tribunal and that are referred
\nto it. Further, an appeal to this
\n750<\/span>
\nCourt under  s. 66A  (2) does  not enlarge  the scope of the
\njurisdiction of\t this Court  as this  Court can only do what
\nthe High  Court can  under s.  66. It would therefore appear
\nthat the  majority decision  in Venkataramon’s\tcase, supra,
\nrests on  the principle\t that (i)  An ultra  vires provision
\ncannot be  regarded as\ta part\tof the\tAct at\tall, and  an
\nassessment under  such a  provision is\tnot “made  under the
\nAct” but  is wholly  without the  jurisdiction\tand  is\t not
\ndirected by  s. 67 of the Act. And (ii) The question whether
\na provision  is ultra  vires or not cannot be decided by any
\nof the\tauthorities created  by the Act and therefore cannot
\nbe the\tsubject matter of a reference to the High Court or a
\nsubsequent appeal to this Court.\n<\/p>\n
     No such  question arises  in a  case like\tthe  present
\nwhere the  impugned orders  of assessment are not challenged
\non the\tground that  they are  based on a provision which is
\nultra vires.  We are  dealing  with  a\tcase  in  which\t the
\nentrustment of\tpower to  assess is  not in dispute, and the
\nauthority within  the limits  of his  power is a Tribunal of
\nexclusive  jurisdiction.   The\tchallenge  is  only  to\t the
\nregularity of  the proceeding  before the  learned Sales Tax
\nOfficer as  also his  authority to  treat the gross turnover
\nreturned by  the petitioners  to be  the  taxable  turnover.
\nInvestment of  authority to  tax involves  authority to\t tax
\ntransactions which  in exercise\t of his authority the Taxing
\nOfficer regards\t as taxable, and not merely authority to tax
\nonly those  transactions which\tare, on\t a true\t view of the
\nfacts and the law, taxable.\n<\/p>\n
     Emphasis is  laid on the following observations made by
\nthis Court in State of Uttar Pradesh v. Mohammad Nooh<\/a>(1):\n<\/p>\n
\t  “If  an   inferior  Court  or\t tribunal  of  first
\n     instance acts  wholly without  jurisdiction or patently
\n     in excess\tof jurisdiction\t or manifestly\tconducts the
\n     proceedings before\t it in a manner which is contrary to
\n     the rules\tof natural justice and all accepted rules of
\n     procedure and  which offends the superior court’s sense
\n     of fair  play the\tsuperior Court\tmay, we think, quite
\n     properly exercise\tits power  to issue  the prerogative
\n     writ of certiorari to correct the error of the Court or
\n     tribunal of  first\t instance,  even  if  an  appeal  to
\n     another inferior  Court or\t tribunal was  available and
\n     recourse was  not had  to it  or if recourse was had to
\n     it, it  confirmed what  ex\t facie\twas  a\tnullity\t for
\n     reasons aforementioned.”<\/p><\/blockquote>\n
     We find  no justification\tfor extending the principles
\nlaid down in Mohammad Nooh’s case, supra, to a case like the
\npresent where
\n751<\/span>
\nthere is an assessment made by the learned Sales Tax Officer
\nunder the  Act. In Raleigh Investment Company’s case, supra,
\nthe Privy  Council rightly  observed that  the phrase  “made
\nunder the  Act” described  the provenance of the assessment;
\nit does\t not relate to its accuracy in point of law. The use
\nof the machinery provided by the Act, not the result of that
\nuse, is the test.\n<\/p>\n
     The  decision  in\tMohamamd  Nooh’s  case,\t (supra)  is
\nclearly distinguishable as in that case there was total lack
\nof jurisdiction.  There is  no suggestion  that the  learned
\nSales Tax Officer had no jurisdiction to make an assessment.
\nNor can it be contended that he had acted in breach of rules
\nof natural  justice. There  is no  denying the fact that the
\npetitioner was served with a notice of the proceedings under
\nr. 12(5)  of the  Rules and  sub-s. (4) of s. 12 of the Act.
\nThe impugned  orders clearly  show that the petitioners were
\nafforded sufficient  opportunity to place their case. Merely
\nbecause the  learned Sales  Tax Officer refused to grant any
\nfurther adjournment and decided to proceed to best judgment,
\nit cannot be said that he acted in violation of the rules of
\nnatural justice.  The question\twhether another\t adjournment
\nshould have been granted or not was within the discretion of
\nthe learned  Sales Tax\tOfficer and  is a  matter which\t can
\nproperly be  raised only in an appeal under sub-s. (1) of s.
\n23 of  the Act.\t All that  this Court  laid down in Mohammad
\nNooh’s case,  supra, is\t that the  rule which  requires\t the
\nexhaustion of  alternative remedies is a rule of convenience
\nand discretion rather than a rule of law; in other words, it
\ndoes not bar the jurisdiction of the Court.\n<\/p>\n
     Under the\tscheme of  the Act,  there is a hierarchy of
\nauthorities before  which the  petitioners can\tget adequate
\nredress\t against   the\twrongful  acts\tcomplained  of.\t The
\npetitioners have  the right  to prefer\tan appeal before the
\nprescribed authority  under sub-s.  (1) of s. 23 of the Act.
\nIf the petitioners are dissatisfied with the decision in the
\nappeal, they  can prefer  a further  appeal to\tthe Tribunal
\nunder sub-s.  (3) of  s. 23  of the  Act, and then ask for a
\ncase to\t be stated upon a question of law for the opinion of
\nthe High  Court under s. 24 of the Act. The Act provides for
\na complete machinery to challenge an order of assessment and
\nthe impugned  orders of assessment can only be challenged by
\nthe mode  prescribed by\t the Act and not by a petition under
\nArt. 226 of the Constitution. It is now well recognised that
\nwhere a\t right or  liability is\t created by  a statute which
\ngives a special remedy for enforcing it, the remedy provided
\nby that statute only must
\n752<\/span>
\nbe availed  of. This  rule was\tstated with great clarity by
\nWilles,\t J.   in  Wolverhampton\t  New  Water  Works  Co.  v.
\nHawkesford(1) in the following passage:\n<\/p>\n
\t  “There are  three classes  of\t cases\tin  which  a
\n     liability\t may\tbe    established    founded\tupon
\n     statute………………………………But there is
\n     a third  class, viz., where a liability not existing at
\n     common law\t is created  by a  statute which at the same
\n     time  gives   a  special\tand  particular\t remedy\t for
\n     enforcing it…………….the  remedy provided by the
\n     statute must  be followed,\t and it\t is not competent to
\n     the party\tto pursue  the course applicable to cases of
\n     the second class. The form given by the statute must be
\n     adopted and adhered to.”<\/p><\/blockquote>\n
     The rule  laid down in this passage was approved by the
\nHouse of  Lords\t in  Neville  v.  London  Express  Newspaper
\nLtd.(2) and  has been  reaffirmed by  the Privy\t Council  in
\nAttorney-General of  Trinidad and  Tobago v.  Gordon Grant &
\nCo.(3) and  Secretary of  State v. Mask & Co.(4) It has also
\nbeen held to be equally applicable to enforcement of rights,
\nand has\t been followed\tby this\t Court throughout.  The High
\nCourt  was   therefore\tjustified  in  dismissing  the\twrit
\npetitions in limine.\n<\/p>\n
     Furthermore, the Act provides for an adequate safeguard
\nagainst an  arbitrary or  unjust assessment. The petitioners
\nhave a\tright to  prefer an appeal under sub-s. (1) of s. 23
\nof the\tAct subject  to their payment of the admitted amount
\nof tax\tas enjoined  by the  proviso thereto. As regards the
\ndisputed amount\t of tax,  the petitioners have the remedy of
\napplying for  stay of  recovery to the Commissioner of Sales
\nTax under  cl. (a) of the second proviso to sub-s. (1) of s.
\n13 of the Act which runs:\n<\/p>\n
     “Provided further that-\n<\/p><\/blockquote>\n
     (a)  When the dealer or person, as the case may be, has
\n     presented an  appeal under\t sub-s. (1)  of s.  23,\t the
\n     Commissioner may,\ton an  application  in\tthat  behalf
\n     filed by  such dealer or person within thirty days from
\n     the date of
\n753<\/span>
\n     receipt by\t him of\t the notice under sub-s. (4), in his
\n     discretion, stay  the recovery of the amount in respect
\n     of which  such notice  has been  issued or\t any portion
\n     thereof, for such period and subject to such conditions
\n     as the Commissioner thinks fit;”<\/p><\/blockquote>\n
     The petitioners  are at  liberty to make an application
\nfor stay  of the  disputed amount  and the Commissioner will
\ndecide whether\tor not\tthere should  be such  stay on\tsuch
\nterms and conditions as he thinks fit, looking to the nature
\nof the\tdemand raised  in the facts and circumstances of the
\npresent case.\n<\/p>\n
     For these\treasons, the  petitions must  fail  and\t are
\ndismissed. We  hope and\t trust that  the Appellate Authority
\nwill dispose  of the  appeals as  expeditiously as possible.
\nShri Nariman,  appearing on  behalf of\tthe State  of Orissa
\nfairly stated  that he\thas no objection to the appeal being
\nheard as  early as  possible without  any  objection  as  to
\nlimitation.\n<\/p>\n
\t\t\t\t\tPetitions dismissed.\n<\/p>\n
754<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Titaghur Paper Mills Co. Ltd vs State Of Orissa on 13 April, 1983 Equivalent citations: 1983 SCR (2) 743, 1983 SCC (2) 433 Author: A Sen Bench: Sen, A.P. (J) PETITIONER: TITAGHUR PAPER MILLS CO. LTD. Vs. RESPONDENT: STATE OF ORISSA DATE OF JUDGMENT13\/04\/1983 BENCH: SEN, A.P. (J) BENCH: SEN, A.P. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-16330","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nTitaghur Paper Mills Co. 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