LARSEN AND TOUBRO LIMITED Vs. STATE OF ORISSA

JUDGEMENT

(1.) PETITIONER calls in question legality of the order of assessment passed under section 12 (4) of the Orissa Sales Tax Act, 1947 (in short, "the Act") relating to assessment year 1996-97. An extra demand of Rs. 1,30,93,178 has been raised.

(2.) ACCORDING to the petitioner, the principles laid down by the apex Court in Builders Association of India v. Union of India [1989] 73 STC 370, Gannon Dunkerley and Co. v. State of Rajasthan [1993] 88 STC 204 and Bharat Heavy Electricals Limited v. Union of India [1996] 102 STC 373 have not been kept in view, and by presumptuous conclusions deductions have been granted for labour and service charges. It is stated that the Sales Tax Officer has calculated the allowable percentage at 31. 21 without indicating any basis therefor. The law relating to levy of sales tax on works contract has been laid down in those cases. The conclusions on the factual aspects have been drawn without keeping in view the law laid down in the aforesaid decisions. The learned counsel for the Revenue submitted that factual controversies are involved, and since statutory remedy is available, the petitioner should avail it and the writ application is not to be entertained.

(3.) READING of the order of assessment shows that factual controversies are involved. Normally the High Court does not exercise jurisdiction by entertaining petitions under article 226 against an order of assessment, when the statute under which tax is sought to be levied provides a remedy by way of appeal or other proceeding to a party aggrieved and thereby by-pass the statutory authority. The writs are issued in proper cases to fill in gaps where no legal remedy or no adequate legal remedy is available. They are meant to supplement not to supersede legal remedies. It has, however, to be borne in mind that the rule of exhaustion of statutory remedy is a self-imposed restriction, and is not an invariable one. Even when an alternative remedy is available to the party, the High Court can interfere under article 226 if extraordinary circumstances are made out showing either lack of jurisdiction or excess of jurisdiction or violation of principles of natural justice. Where factual disputes are involved normally writ applications are not to be entertained. If finding of the assessing authority on questions of fact are challenged as being opposed to material on record, the appropriate remedy is filing an appeal and not a writ application.