SONPAL GIRRAJ KISHORE Vs. SALES TAX OFFICER

JUDGEMENT

(1.) This is a writ petition under Article 226 of the Constitution directed against the Order of the Sales Tax Officer, Hathras, dated the 18th January, 1960, whereby he held that the application filed by the petitioner under Section 30 of the U. P. Sales Tax Act (hereinafter referred to as the Act) for setting aside an exparte assessment made under Section 7, Sub-clause (iii), of the Act could not be, entertained as the condition precedent for hearing of such an application was that "tax admitted to be due" was first to be paid and the plea of the peti tioner that no tax was due was fantastic. The application on merits was also disposed of without giving the petitioner an opportunity of being heard or showing cause that he was prevented by sufficient cause from appearing on the date fixed.

(2.) An ex parte assessment order was passed on the 27th November, 1962, and the petitioner was assessed to a tax of Rs. 4,500 for the assessment year 1960-61. The petitioner had not filed any return or admitted any tax liability, as according to him, he was neither a dealer nor had any turnover on which tax could be imposed under the U.P. Sales Tax Act. The petitioner filed an application under Section 30 of the Act, on the 10th of January, 1963, for setting aside the assessment order and for reopening the assessment proceedings. In that applica tion it was stated that the applicant did not admit any liability for tax against him and not also gave reasons for the same. As the petitioner did not admit that any amount of tax was due against him, no pay ment was made by the petitioner at the time of filing the application under Section 30. The Sales Tax Officer by his order dated the 18th of January, 1963, refused to entertain the petitioner's application under Section 30 of the Act on the ground that the petitioner had not paid the tax admitted by him nor as determined by the assessment order. He considered the plea of the petitioner that he was not liable to pay tax to be fantastic. He also proceeded to dispose of the application on its merits without giving the applicant an opportunity of being heard. This writ petition is directed against the Order of the Sales Tax Officer dated the 18th January, 1963.

(3.) A preliminary objection was taken that an alternative remedy against the Order passed under Section 30 by way of appeal under Section 9 was available and, therefore, the writ petition should not be entertained. It has been laid down by the Supreme Court in A. V. Venkateswaran v. Ram Chand Sobraj Wadwani A.I.R. 1961 S.C. 1506, that the rule that the party who applies for the issue of a high prerogative writ, should before he approaches the Court, have exhaust ed other remedies open to him under the law is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it but is rather a rule which courts have laid down for the exercise of their discretion. The wide proposition that the existence of an alternative remedy is a bar to the entertainment of the petition under Article 226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or the authority to take the action impugned or (2) where the Order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and could therefore be treated as void and non est and that in all other cases Courts should not entertain petition under Article 226 or in any event not grant any relief to such petitioners cannot be accepted. The two exceptions to the normal rule as to the effect of the existence of an adequate alternative remedy are by no means exhaustive and even beyond them a discretion vests in the High Court to entertain the petition and grant the petitioner relief notwithstanding the existence of an alternative remedy.