Judicial discretion allows entertaining writ petitions despite alternative remedies, primarily in cases of natural justice violations.

THE HONOURABLE SRI JUSTICE SUJOY PAUL AND THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO WRIT PETITION No.5473 of 2024 ORDER: (per Hon’ble Sri Justice Sujoy Paul)

Sri T.S.Murthy, learned counsel for the petitioner and Ms. B.

Swapna Reddy, Senior Standing Counsel for CBIC, representing Sri Gadi Praveen Kumar, Deputy Solicitor General of India.

2. Heard on admission.

3. This Petition filed under Article 226 of the Constitution takes exception to the order dated 12.09.2023 (annexure P-1) vide Order- in-Original No. 208/2023-24-S.Tax issued by the first respondent. This assessment order is called in question in this petition directly by contending:

(i) the impugned order is founded upon certain show-cause notices, which were issued beyond the statutory period of limitation of thirty months under Section 73 (1) of the Finance Act.

(ii) The show-cause notices were served through E-mail whereas the Act nowhere prescribes any such mode of service through E-mail (iii) the petitioner filed his replies and placed reliance on certain High Courts and Supreme Court judgments. Since the impugned order is not a reasoned order and all the contentions raised by the petitioner were not considered by the first respondent by placing reliance on two judgments i.e. Steel Authority of India Ltd. Vs. Sales Tax Officer, Rourkela-I Circle and others, [(2008) 16 VST 181 (SC)] and Ravi Gupta Vs. Commissioner of Sales Tax, Delhi and another, [(2009) 22 VST 529 (SC)], it is urged that if the ‘conclusion’ is not founded upon the ‘reasons’, the impugned order pregnant with such conclusion becomes vulnerable and liable to be set aside.

(iv) The petitioner is not a registered body as mentioned in the impugned Order and, therefore, for this reason also, the impugned Order is bad in law. Since there is serious violation of principles of natural justice and Departmental Notifications/Circulars, the impugned order is liable to be interfered with, more so, when the assessment is not completed within the stipulated time.

Ms. B. Swapna Reddy, Senior Standing Counsel for CBIC, opposed the prayer by submitting that there is no procedural flaw in the decision making process. The petitioner has a statutory remedy of appeal and all these aspects can be gone into by the Appellate Authority. The petitioner was given an opportunity to file reply as well as an opportunity of personal hearing.

4. We have heard the parties on this aspect.

5. Whether or not the petitioner has suppressed the fact, and whether extended period of limitation can be applied or not, is a mixed question of fact and law. The Appellate Authority is the best suited to examine this aspect, as well as the aspect of procedural impropriety, violation of principles of natural justice, un-reasoned order and other aspects raised by the learned counsel for the petitioner.

6. No doubt, in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, [(1998) 8 SCC 1] it was held that the Writ Petition can be entertained despite availability of statutory alternative remedy in certain situations like;

i) When violation of principles of natural justice takes place.

ii) When fundamental rights are breached.

iii) When the vires of the provision itself is called in question iv) When the order passed by an incompetent authority, This judgment of Whirlpool Corporation (supra) was considered by the Supreme Court in U.P. State Spinning Co. Ltd. v.

R.S. Pandey and Another4 and it was opined as under:-

“17. …But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something goin