WP(C) No. 2413 of 2007 · Kerala High Court

K.BALAKRISHNAN NAIR, J.-----------------------------------------W.P.(C) NO. 2413 OF 2007-K-----------------------------------------JUDGMENTThe petitioner, who is an assessee under the K.G.S.T. Act, impugnsExts.P1 to P3 assessment orders directly before this Court, under Article226 of the Constitution of India. Normally, the petitioner has to invoke theappellate remedy. The ground advanced for directly approaching this Courtis that the orders have been passed in gross violation of the principles ofnatural justice. The petitioner was not given a fair opportunity to present itscase, by producing the books of accounts. Hence this Writ Petition, challenging those orders under Article 226 of the Constitution of India. 2. To justify the invocation of the writ jurisdiction, the learnedcounsel for the petitioner relied on the decision of the Apex Court in Stateof Tripura v. Manoranjan Chakraborty [(2001) 122 STC 594] and alsothe decisions of this Court in M.S.Jewellery v.

Assistant Commissioner[1994 K.L.J. (Tax Cases) 24] and Malayala Manorama Co. Ltd. v.Assistant Commr. (2006(4) KLT 235). The petitioner also submits that theappellate remedy may not be efficacious for the reason that it has to pay0.5% of the tax due as court fee, which will come to a huge amount. Wpc 2413/200723. The violation of the principles of natural justice, alleged in thiscase, can be redressed by the appellate forum. The petitioner can producethe books of accounts and other relevant materials in support of itscontentions before the appellate authority. This Court can only quash theassessment orders and remit them for fresh disposal in accordance with law. But, as per the amended provisions of the K.G.S.T.Act, the appellateauthority will not remand the matter. It can receive additional evidence, consider the matter de novo and pass a fresh order. All the grievances of thepetitioner concerning the assessment orders, including that of violation ofthe principles of natural justice can be effectively redressed by the appellateforum.

Therefore, even if a writ will lie, in view of the authorities cited, it isunnecessary for this Court to invoke its jurisdiction under Article 226 of the Constitution of India. Further, the Apex Court in Union of India v.Hindalco Industries (2003 A.I.R. S.C.W. 2062) has held as follows:

There can be no doubt that in matters of taxation, it isinappropriate for the High Court to interfere in exercise ofjurisdiction under Article 226 of the Constitution either at thestage of show cause notice or at the stage of assessment, where alternative remedy by way of filing a reply or appeal, asthe case may be, is available........... .

The above decision also supports the view taken by me. 4. The contention of the petitioner that it will have to pay a court fee Wpc 2413/20073of 0.5% of the tax due, is not a ground to condemn the statutory remedyprovided, as not efficacious. It is the scheme of the Act, which cannot besubverted by invoking the power under Article 226. In the result, the Writ Petition fails and it is dismissed withoutprejudice to the contentions of the petitioner and its right to invoke theappellate remedy. 30th January, 2007.K.BALAKRISHNAN NAIR, JUDGE.Nm/